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THE 



FORUM 



FORTY YEARS FULL PRACTICE 



Kplaiijlplia far. 

BY 

DAVID PAUL BROWN. 

ilAONOa DIOENDI LABOR — MilNA BE3, MA'JNA BIONITAS. SDMilA AUIEM QHAIIA." — CICE30. 

VOL. I. 



PHILADELPHIA: 
ROBERT H. SMALL, LAW BOOKSELLER, 

NO. 21 SOUTH SIXTH STREET. 

1856. 



■4, \ 



Entered according to Act of Congress, in the year of our Lord 1856, 

BY DAVID PAUL BROWX, 

ill the District Court, for tlie Eastern District of Pennsylvania. 



Kofb, Pile & M'Elroy, Prs. 
Lodge Street. 






■-lb ^ ' 



^ 



TO 

MY WIFE AND CHILDREN, 

FROM THE E K J Y M E N T OF WHOSE SOCIETY, 
THE TIME EMPLOYED IN THIS WORK 

HAS BEEN CHIEFLY WITHDRAWN, 

THE WORK ITSELF IS AFFECTIONATELY 



INSCRIBED. 



DAVID PAUL BROWX. 

Sept. 28, 1856. 



% 



^nUt ijf <l^anUnU. 



PROEM, XXV 

Objections to Auto-BIography — Substitution of Extracts from Living- 
ston's Memoirs — Reasons for not omitting it altogether — The motive 
offered as an apology. ' 



BIOGRAPHICAL MEMOIR, xxvii 

Parentage — Birth — Training by mother — Teachers — Temperament — Me- 
mory — Indulgence — Anecdote — Letter from Mr. Rawle — Mother's death 
and its effects — Sent to Massachusetts — Extract from Sandemanians — 
Return home — Commences study of medicine with Dr. Rush — Death of 
Dr. Rush — Studies law with Mr. Rawle — Course of reading — Death of 
father — ^Admitted to practice — First cause — Orations — Catholic dis- 
putes- — Case of conspiracy — Impeachment of Judge Porter — Marriage 
— Extent of professional business — Case of Zelin v. Snyder, Circuit 
Court — Promptitude in emergency — Perils of pi'inting — Review of 
Brougham, Baillie, and Hamilton — Sertorius, Prophet of St. Paul's 
and other dramas — Notices of them — Bar anecdote — Extract from pri- 
vate journal of a member of the bar — Habits of life and manner of 
speech — Mode of composition — J. R. Ingersoll — Eulogy upon Mr. 
Rawle — Mr. B.'s regard towards younger members of the bar — Golden 
rules for examining witnesses — Capital hints for capital cases — Trial 



^jj CONTENTS. • 

of Holmes — Trial of Cranmer — Of Starg — Reformed infidel — Trial of 
Farkin — Hinchman's case — Notions of dress — Professional and lite- 
rary labors — Conclusion. 



INTRODUCTION, cxxv 

Objects and importance of work — Value of family tradition — Importance' 
of professional recollections — Influence upon successors — Lawyers — 
Social accomplisliments — Notice of departed — Delicacy in referring to 
the living — Necessity for the work — Now or never — Imperfections of. 
this attempt — Grateful acknowledgement to the patrons of the Forum. 



CHAPTER I., ......... 135 

Forensic eloquence — ancient and modern ; with illustrations — Re- 
trospect — Written speeches of ancients — Introduced by Pericles — Ob- 
servations thereon — Egyptian forensic practice — Grecian eloquence — 
Confined to Athens — Speeches of Demosthenes — Many never delivered 
by him — Dicasts — Their corruption — Sycophants — Limitation of 
speeches — Clepsydra, or water-clock — Adopted in Rome ; which learnt 
the vices as well as the virtues of the Greeks — Roman kings originally 
presided at trials — Prsetors — Orators and their obligations — Origin of 
term, advocate — The judices, or judges — Their knowledge and powers — 
Artifice and management resorted to upon trials, by advocates — Their 
ignorance of the law — The praetors, or judices — Influence of passions 
upon their deliberations — Few scientific lawyers among Romans — 
Oratory the main pursuit — Scsevolo and Sulpicius — The most eminent 
iuris consults — Still held subordinate to advocates, and treated con- 
temptuously when engaged in trials — Cicero — Republic changes into 
royalty — Quintillian, his admiration of Cicero — His Institutes of Ora- 
tory — His composition — Approved and recommended extemporary 
speaking, and general, instead of special, legal preparation — His great 
excellence in his art — Considers speech man's highest endowment — 
Eloquence, the perfection of speech — Its rarity — its character in 
modern times — Liberty essential to it — hard study indispensable — 
Disreo'ard of opportunities of improvement — Supiueness of present 
times as compared with the past — Encouragement to reform — Charms 
of a life of study — Its advantages — Qualifications of an orator — The 
advocate, compared to a mere lawyer — Eloquence ; in what it consists — 
Words are things — Action, action, action — Extract from Reliques of 
Literature — Shakespear on action — Blair upon passion and its influ- 
gnce — Substitution of Aaron, "who spoke well," for Moses, who was 



CONTENTS. Xiii 

"not eloquent" — Patrick Henry tearing off his wig — Burke and She- 
tidan — Gesture without action — Extracts illustrative of true eloquence 
— Demosthenes — Cicero — Brutus — Mansfield — Chatham — Burke — Bin- 
ney — Sergeant — Webster — Ingersoll — Difference, (showing the impor- 
tance of action,) between great dramatic performers and the drivellers 
or drones of the theatre — Moral courage — Deficiency in this respect 
of Demosthenes and Cicero — Mansfield, Erskine, Pinckney, and others 
— Every man has his weak hour — Instance of firmness of Erskine in 
case of the Dean of St. Asaph — Great superiority of St. Paul — His 
fearlessness and eloquence — Character compared with Demosthenes 
and Cicero — Advantages of eloquence generally, and inculcation of 
its necessity in the advancement, and enjoyment, and influence of 
life. 



CHAPTER II., . 212 

Review of the practice of the law before the revolution; 
AND judges and MEMBERS OF THE BAR — Difficulty of researches on 
these points — Very simple state of jurisprudence in Penn's time — 
Advocacy gratuitous — Most disputes settled by arbitration — Illustra- 
tions — Associate Judges of Common Pleas not learned in the law 
—Isaac Norris— Portrait of him— Small extent of judicial proceed- 
ings up to 1731, as shown by records — Early records burnt by 
county commissioners — A few saved — Examples of them^Great 
change and improvement about the middle of last century, in the 
colonial jurisprudence and society generally — Case of William v. 
Till, in 1749, and pleadings — Account of the justices who tried it — 
Thomas Lawrence, Joshua Maddox, Edward Shippen, and Benja- 
min Franklin — All except Franklin, merchants — Judges in 1777 — 
Costume of the justices and bar, as shown in portraits of Mad- 
dox and Andrew Hamilton — Beauty of the later provincial records — 
Chief Justices of the Supreme Court— Logan, Robeson, Langhorne, 
Kinsey, Allen— Puisnes — Coleman, Growden, Cowpland, Stedman, 
Lawrence, Morton, Willing — Retrospective view — The court of vice- 
admiralty— Its judges— Assheton,, Read— Members of the provincial 
Ijar — Services of the Historical Society of Pennsylvania as at present 
organized— Trial of John Peter Zenger, at New York- Andrew Hamil- 
ton—History of the liberty of the press in Pennsylvania ; and herein of 
William Bradford, the first printer in America south of New England— 
•Comes here with William Penn— Governour Blackwell— Penn's deputy 
endeavours to suppress Bradford's press, and arrests him — Bradford's 
defence— Second attack on the press by the city magistracy— Brad- 
ford's trial and final acquittal— Andrew Bradford— Hamilton at New 



Xiv CONTENTS. 

York in defence of Zenger — Account of the proceedings prior to his 

arrival — His speech, and success — Obituary notice of him — List of 
provincial judges and attorneys-general. 



CHAPTER III., 297 

The judiciary — their appointments — tenures — salaries — Chief Jus- 
tices before Mansfield's time — With few exceptions, unworthy of remem- 
brance — Lord Coke's selfishness and cruelty — Entitled to rank with the 
"Bloody Judges" — Conduct towards Bacon and Raleigh — Lord Mans- 
field's opinion of it — Coke a great lawyer, but a bad man — His connec- 
tion with the common law — Horror of the bar at an attack upon him — 
General character of the judges before the time of Mansfield — Rivalling 
Jeffries in infamy — Improvement within last century, in manners, 
morals, and talents — Terms by which judges had appointments, and 
their changes — Effect upon the judiciary — American Courts — Honest 
and competent — Their tenure of office — Difference between English and 
American judges, and its causes — Constitution of Pennsylvania of 22nd 
of February, 1838 — Of the judiciary — Amendments, power of — Amend- 
ments — Life appointments changed to terms for years — Appointments 
became elective in 1850 — Clause of good behavior and oatli still re- 
tained — Objections in convention to tenure for years — Unavailing — 
Hope triumphs over experience — No complaints of result at present — 
Best advocates do not make best judges, (Erskine, Brougham, Camp- 
bell, Wilson, IngersoU, Huston,) either in England or in this country — 
Reason thereof assigned — Lord Campbell's doctrine on the subject — 
Are terms for years to be preferred to life appointments ? — Are elective 
judges preferable to those by appointment? — Brief discussion of this 
matter — Salaries of judges too low — Impropriety of annual appeals to 
increase them, made by the bar — Indelicacy of the movement — Meet- 
ings, committees, &c. — Objects — Toadies and supernumeraries — Sign- 
ing petitions — All unfavorable to a dignified and impartial administra- 
tion of justice — Judges should ask no favors and fear no frowns — 
Apparent influence leads to suspicions and unjust slanders, by which 
justice is sullied — Integrity and purity of our present judiciary — How 
long are they to last ? — The poUs, how made up — The crisis that must 
arrive — Poverty of judges — Meagre salaries — The cure of the evils — 
Continuance of present judges in oQice for life — Old judges and settled 
laws — New judges and reform — Limitation of age — Its absurdity — 
Marshall Kent — English judges — Retiring pensions — Enlargement of 
salaries — Judges must live — Must be paid — Not paid vnth a maxim or 
a proverb. 



CONTENTS. 



XV 



CHAPTER IV., 320 

Thomas M'Kean, l.l.d. — Preliminary remarks — M'Kean one of the signers 
of the Declaration of Independence — First Chief Justice of the Supreme 
Court of Pennsylvania — Appointed on the 28th of July, 1Y77 — Continued 
until 17 79 — Elected governor — Succeeded as Chief Justice by Edward 
Shippen a prior associate — Incidental notice of Judge Shippen — Birth 
— His parents — Sent to Middle Temple — Pteturns to Philadelphia — Ad- 
mitted upon his certificate of "utter barrister" to practice in Supreme 
Court of Pennsylvania — A man of learning and a safe judge — Upon the 
bench, from 1791, until 1799, as an associate — Importance of legal educa- 
tion at the Temple overrated, (note) — The judges of the time well 
founded in legal principles and practice — Been clerks and protho- 
notaries — Effect of general knowledge upon judicial character — A judge 
expected to know everything — Chief Justice of King's Bench and Jack 
Tar — Personal appearance of Judge Shippen — Resigns in 1805 — Died 
on 16th April, 1806— Portrait in Law Library— M'Kean— Birth— Of 
Irish extraction — Parentage — Studies law with a maternal relative — 
Admitted to practice in S/ipreme Court in 1757 — formerly prothonotary, 
&c. — Selected to revise the laws in 1762 — Becomes Governor of Penn- 
sylvania in 1789 — Continues three terms — Always considered a sound 
lawyer — A theoretic democrat, though somewhat aristocratic in prac- 
tice — Fondness for titles — An instance thereof — Ceremony in opening 
his court — A man of inflexible honesty and undoubted ability — Strong 
prejudices — Jealous of authority — Sternness on the bench — Indepen- 
dence of the bar in his time — Governeur Morris — William Lewis — 
Never wavered in his duty — Warrant for the arrest of Colonel Hooper 
(for libel) — General Green writes to Chief Justice on the subject — Reply 
and rebuke from M'Kean — Case of the Chevalier de Longchamps for 
assault upon Marbois — Sentenced by M'Kean — Respublica v. Oswald, 
(libel and attachment) — Statement of the origin and course of the 
case — Lewis for the prosecution, Jonathan Dickenson Sergeant for de- 
fendant — Decision and sentence by chief justice — Attempt to impeach 
chief justice (note) — Style imitates Mansfield — Resembled Holt more — • 
Notice of Lord Mansfield's course after destruction of his library — Stan- 
zas by Cowper — M'Kean summoned by sheriff as one of his posse — 
Riot suppressed by him — Account doubtful from its resemblance to a 
similar anecdote of Holt — Governor M'Kean applied to by a committee 
opposed to Tilghman's appointment as chief justice — His deportment, 
and refusal to comply with their demands — Conduct towards a com- 
mittee requiring him to withdraw a veto — Deserved rebuke — Refuses 
the address to remove Breckenridge — " May" sometimes means " wont" — 



XVI 



CONTENTS. 



Cordiality at times — Appointment of Alderman Goodman — Created 
Doctor of Laws by Nassau Hall (Princeton) — Member of Cincinnati — 
Trustee of Pennsylvania University — Patron of other societies — ^First 
marriage — Second marriage — Survives most of his children — Descrip- 
tion ofhis person, dress, manners, &c. — Independence — Pride — Walking 
emblem of Declaration of Independence — Marquis de CasaYrujo — 
Duke of Soto Major (note) — Genius — Education, &c. 



CHAPTER v., 350 

BusHROD Washington, l.l.d. — Notice of Justices Wilson, Iredell, Patter- 
son, and Chase — Disposition of Chase — Trait of Leake — Case of Fries — 
Gratitude to Luther Martin — Conduct towards Moses Levy — Death of 
Judge Chase — Washington, the judge — His great qualities — His literary 
attainments — His appointment at the age of thirty-seven — Appointment 
of Chief Justice Marshall — Death of Washington — Tablet to his me- 
mory — Person and judicial deportment — Rebuke of the crier — His in- 
dependence and impartiality — Zelin v. Snyder — Mr. Bellas examined 
as a witness, the other witnesses having gone off — Difference between 
Washington and Peters on subject of equity — Sinnickson's will, Tren- 
ton — Conversation between Stockton and Washington — Don Vives — 
Mr. Adams — Supreme Court, U. S. — Chancellor Kent — Chief Justice 
Marshall — Governor Desha and his son — Death-warrant or pardon — 
Judge Washington's views on the subject — Tenderness towards his 
wife — Her accompanying upon his circuit in his own carriage — She 
survived him but twenty-four hours — ^Resemblance to Mrs. Marshall, 
vdfe of Chief Justice — Judge Marshall sacrifices to his wife's humor — 
Bravery of Judge Washington — Equal to his uncle — Judge Hopkin- 
son's eulogy — Case of the Atlantic — Dispute of the counsel — Rebuke of 
the judge — Strange occurrence in court — Alienation of mind — Judge 
Washington's deportment — Trial of Lieutenant Hand, for assault upon 
Russian minister — Don Onis subpcened — Jury find against judge's 
charge in a civil case — Motion for a new trial — Granted at once — 
Washington's manner of charging a jury — Never suspected of unfair- 
ness — Indifference to the opinions of others when conscious of doing 
right — Murray v. Dupont — Excellent definition of probable cause — 
Case of United States v. General Bright and others — Statement of the 
facts — Judge Washington's firmness and independence — The convic- 
tion — Sentence. 



CONTENTS. xvii 



CHAPTER VI., 379 

William TiLGHMAN, L.L.D. — Drawn chiefly from Mr.Binney's eulogy — Rea- 
sons assigned — Difficulty of making extracts without impairing the work 
— Like severing the Graces — Dr. Johnson's excuse for borrowing from 
Goldsmith — Mr. Binney's eulogy nearly out of print — Nature of law — 
How judges should be selected, and who should be avoided — Tilghman's 
fitness — Recommended for imitation — Birth — Ancestors — Enters col- 
lege — His instructors — Takes his degree — Studies law with Mr. Chew — 
Removes to Chestertown, where he pursues his legal studies — Becomes 
a representative to the legislature of Maryland — Appointed Chief Judge 
of Circuit Court — Short existence of the court — Appointed Presi- 
dent of the Court of Common Pleas — Commission as Chief Justice of 
Supreme Court — His industry and talents — Reports English statutes in 
force with us — His influence with the bar — His moderation and mo- 
desty — His opinions — Incorporation of equity with law — Their distinc- 
tions — Penal law — Oyer and Terminer — His deportment and know- 
ledge — Finished capital cases in one session — Pronounced sentence 
with great pain — Resemblance to Sir Matthew Hale — His reverence for 
Deity — Excellent temper — His character as a judge — Comparison with 
other judges — Clearness of mind — His moral qualities — His early life — 
In harmony with his latter years — Consistency between his judgments 
and his life — His great delicacy and refinement — Benevolence — Death- 
bed scene — The completion of his seventieth year — His memoranda — 
Death — Description of his person — Portrait in Law Library. 



CHAPTER VIL, 396 

H.H.Breckenridge, L.L.D. — Born in Scotland, 1748 — Came to this country 
at five years of age — Enecgy of character sprung from his difficulties — 
Education — Teacher in Maryland — Enters Princeton College — Next 
class to Luther Martin, Madison and Bradford — Graduates — Becomes 
chaplain — Resigns — Becomes a student of Judge Chase— Admitted to 
practice in 1780 — Appointed Associate Judge of Supreme Court — His 
economy — Death in 1816 — A man of genius and an author — Modern 
Chivalry and Law Miscellany — His eccentricities — "Want of harmony 
between him and Judge Yeates — Contrast between them — Habits of 
Breckenridge on the bench — Cause of difference arising between asso- 
ciates — Age, personal appearance, manners and dress — Judge Breck- 
enridge on the circuit — Amusing nonsuit — Well deserved — Ejectment be- 
fore Judge Thomas Smith — The bribe of twenty joes — Riding naked 
through a storm — His strange mode of bathing — Not deficient in firmness 



^^^ jjj CONTENTS. 

or courage — Abliors duels — Affair with General Lee — Cowsklnning — 
Answer to a challenge — Another answer — Trial of Smith and Yeates be- 
fore the Senate — Judge Breckenridge approves their conduct, and asks to 
be embraced in impeachment — Judges acquitted — Address presented 
to Governor for removal of Breckenridge — Rejected by Governor 
M'Kean — "May" means "ivonr — Contempt of aristocracy — Historical 
Society — Virginia act of Assembly set off against the Pennsylvania act 
— Open "enclosure," &c. — Extracts — Res Angustse Domi — Advance- 
ment in legal practice — Avoiding bad habits at the bar. 



CHAPTER VIII., 418 

JojH Bannister Gibson, l.l.d. — Birth — Death — Parentage — Account 
given by himself of his maternal ancestors — His education — Enters 
grammar school at Dickinson College — Enters college in his twentieth 
year — His cotemporary — Does not matriculate — Commences the study 
of the law with Judge Duncan — Admitted in 1803 — His study of medi- 
cine with Dr. M'Coskrey — Practical application of medical knowledge 
in after life — Case of Smith v. Cramer — His last opinion — After admis- 
sion to the bar, goes to Beaver county — Leaves it and goes to Hagers- 
town, Maryland — Not successful — Returns to Carlisle — Opens his office 
there — Obtains practice — His versatility of genius — Fondness of amuse- 
ment — Theatrical exhibition at United States Arsenal — Directs arrange- 
ments and paints scenery — Slandered by a member of the bar — Punishes 
him — Finds his mistake and corrects it — Narrowly escapes a duel — 
Becomes a legislator — Appointed President Judge of the Common 
Pleas for Tioga county — Marries — Upon death of Judge Breckenridge 
appointed Associate Justice of Supreme Court, by Governor Snyder — 
Solicited to accept a nomination for governor — Declines it, and his rea- 
sons for so doing — Description of his person and manners — Deep, but 
not close student — Not a good judge at Nisi Prius — Given to poetry 
and drawing — Liked law as a science, but not its details — OccasionaUy 
rough, but not resentful — Appointed Chief Justice on 18th of May, 
1827 — Devotion to his duties — Receives degree of Doctor of Laws, from 
University of Pennsylvania and Cambridge — His resignation and re- 
appointment — An injudicious step — Its effects upon him and the court 
— Not justified, if excused — A mistake, if not a fault — Discussion of 
the subject — Would have been a great general, musician, or painter — 
Anecdote relating to his music on Sunday — Trial before legislative 
committee of an associate judge — Testimony of Judge Gibson — A re- 
buke — Acquittal of the judge — Social qualities of Gibson — Point of re- 
semblance to Hamilton — His account of his journey to Beaver, and his 



CONTENTS. Xix 

traffic in horses — His charity and kindness — Erection of a monument to 
Jefferson the comedian — Portrait of Judge Kennedy — Domestic vir- 
tues — His approaching death — The great Audit — Death — Announce- 
ment by Chief Justice Black. 



CHAPTER IX., 441 

The Bar^ — The members of bar — Martial not superior to legal reputa- 
tion — Civil law — Advocates fought, as well as ''armed warriors" — Judge 
Breckenridge and Sallust — Comparison of generals, historians and law- 
yers — A trial, the image of a field of battle — An able lawyer would make 
a great general, but an able general would not make a great lawyer — • 
"William Lewis — Young men — May become great men — There is no 
superior body of men, to the legal profession — Devotion to their country, 
liberality, &c., have never been surpassed — Few spots upon their fame 
— Fame from the earliest times — Wilson, Shippen, Dickenson, &c., 
succeeded by Lewis, Rawle, Ingersoll, Tilghman, Sergeant, and others 
— Grades and business of lawyers — Boyhood of Lewis — Throws off his 
gaberdine — Enters the office of Nicholas Wain, as a student — His hum- 
ble condition — Doomed to menial service — Refuses compliance — Com- 
plaint against him — Decision of Mr. Wain — Lewis's success — Admitted 
to practice — His post — Aristecracy of his mind — Powers of reasoning 
— Manner of speech — Voice — Purity of his English — Not surpassed — 
Few speeches extant — Mr. Pinckney's objection to publishing speeches — 
Imperfect stenography — Thomas Lloyd the only reporter — Lewis's effect 
upon the feelings — His wit and sarcasm — Instance in his last criminal 
case — Differed widely from Ingersoll, Rawle, and Dallas, who were re- 
markable for courtesy — Lewis spoke well at all times, places, and upon 
most subjects — Remark to Mr. Robert Wain — Overbearing and opiniona- 
tive — Quarrel with A. J. Dallas — His extensive business — His philo- 
logy and logic — Resembled Demosthenes more than Cicero — Want of 
judgment in selecting his points — Argument against Alexander Hamil- 
ton — Failure — He was a careless man in regard to papers and office — 
Retirement to his country seat — Died, 1819 — Description of his person 
and his mode of speech — Animation — Opinion of the Indian delegation 
in regard to him — A fast friend — Refuses to support a corrupt cause — 
Condition of his table and papers — Library — Condition of offices gene- 
rally — Improvement after 1820 — Difference between a speech delivered 
and a report of a speech, discussed — Charles James Fox's remark 
upon Sheridan's speech — William Pinckney opposed to reports — Ex- 
cuse for meagre materials of speeches — The substance of Mr. Lewis's 



XX 



CONTENTS. 



speech in the legislature upon the attempted impeachment of Chief 
Justice M'Kean and others. 



CHAPTER X., . 470 

Jared Ingersoll, l.l.d. — Birth — Reads law with Joseph Reed — Admitted 
to Practice — Goes to London — Remains abroad five years — Returns, and 
is admitted to practice in Supreme Court, in 1779 — Difference between 
him and Lewis — His mildness and moderation — Mode of speaking — 
Addressed the reason and judgment of his hearers — His great success 
at the bar — Superiority of his education— Foreign travel — Inner Tem- 
ple — Refinement and accomplishments — Delicacy and modesty — Avoids 
politics — Attachment to the law — Oliver Ellsworth — Lord Lyndhurst, 
then Sir John Singleton Copley — Their introduction — Industry of 
Mr. Ingersoll — Devotion to his profession — Generosity of character — 
Just and humane — His amenity at the bar — Indulged in no harshness — 
Ability in the case of Evans — His style colloquial — Influence with 
jury — Freedom from excitement — Contrast between Mr. Ingersoll and 
Mr. Lewis — Remarkable for his success — Gained almost every cause 
during an entire session of the Circuit Court — Evans v. Pierce and 
others — Case of Richard Smith — Character of his speeches — Speech in 
the case of Blount, before United States Senate — Comparison with 
Lewis — ^Retains his power to the last — Attributable, with himself and 
others, to reverses of fortune — Fortune renders men supine — Want of 
it compels exertion — Great men rely vipon talents and virtue — Sight 
defective — Took notes, but rarely read them — Prepared in walking and 
soliloquising — This course to be preferred — Rendered necessary by 
habit — "Walter Scott's anecdote — The loss of the case of Clough — Peri- 
patetic preparation not unusual — Mr. Ingersoll appointed second time 
Attorney-General — Difficulty with the democracy in making appoint- 
ment — Mode in which the embarrassment was avoided — Appointed 
President Judge of District Court — Occupies the post until death — Re- 
marks thereon — Judge, not equal to the advocate — Died 31st of Octo- 
ber, 1822, aged seventy-three — Left a great name — Succeeded by emi- 
nent sons — The Ingersolls great lawyers, and accomplished advocates — 
Will be remembered while the Philadelphia bar is remembered — De- 
scription of Mr. IngersoU's person — Dress — Manners, &c. — Remarks 
upon the dress of bar generally — Harmony and friendship — No jea- 
lousies — Social and convivial parties — A band of brothers — Avoiding 
and condemning all artifice. 



CONTENTS. 



XXI 



CHAPTER XI., 490 

William Bradford, l.l.d. — Introductory remarks — Birth of Bradford, 
1755 — Death, 1795 — Talents and honors achieved by him — Enters col- 
lege, (Princeton) — Friendship with Madison — Correspondence between 
them — Degree of Bachelor of Arts — Master of Arts — Enters the office 
of Edward Shippen, afterwards Chief Justice — Enters camp as a volun- 
teer — Promoted — Captain — Colonel at twenty-two years of age — With 
army at White Plains, Fredericksborough, and Raritan, in 1718 — Left 
the service next year on account of ill health — Returns to his legal 
studies — Admitted to practice — Same time with Moses Levy — Ap- 
pointed Attorney-General of the State, in place of Sergeant — Mr. 
Rawle's opinion of him — Samson Levy's anecdote in regard to Hallo- 
well and Bradford — Appointed Judge of Supreme Court, in 1791 — ^In 

. ,1794, Attorney-General of United States — Commissioner upon Western 
insurrection — His report — Bill for abolition of punishment of death, 
except in murder in first degree — Attributable to Bradford — Official 
duties severe — Exposure produced fever — Resulted in death, on 17th 
August, 1795 — Buried at St. Mary's Church, Burlington — Monument 
and inscription. 

CHAPTER XIL, 499 

William Rawle, l.l.d. — Born, 1759 — Died, 1836 — Parentage — Educa- 
tion — Studies law with Counsellor Kemp, of New York — before revolution 
visits mother country — Installed a Templar — Returns in 1783 — On the 
4th September, admitted to practice in Supreme Court — His personal ap- 
pearance, and accomplishments — Life of a professional man — Remarks 
— 1791, appointed by Washington, District Attorney for United States 
— Office of Attorney General tendered to him — Upon election of 
Mr. Adams, resigned — Not simply a lawyer — A poet ; a philosopher ; 
a Christian — Translates Plato — Notions on subject of religion — 
Church of England — Friends — Angelic influence — Reflections and 
prayers — Elected honorary member of Maryland Abolition Society 
— Also Pennsylvania Society — Became President — His professional 
efforts — I become his student — Examination — His fortune — His mis- 
fortune and afflictions — Loses daughters, son, wife ; all — Poetry ex- 
pressive of his condition — Courtesy of manner — Septembei', 1827, Doc- 
tor of Laws, Princeton — In 1828, same from Dartmouth — Applied to 
for a new edition of his Constitutional Law — Declines — Resignation to 
death — His miud centred upon heavenly things — He passes from works 
to rewards. 

VOL. I. — 2 



Xxii CONTENTS. 



CHAPTER XIIL, 529 

Alexander James Dallas, l.l.d. — Birtli — Native of Jamaica — Education 
at Edinburgh — Westminster — A pupil of Elphinstone — Father a physi- 
cian — Married — Lost his inheritance — Its results — Thrown upon his 
own resources — Left Jamaica for Philadelphia — Arrives on loth June, 
1783 — Enamoured of republican institutions — Takes the oath of alle- 
giance — Engages in preparing for admission to the bar — Admitted in 
1785 — Prepares his Reports, and contributes to literary magazines — 
Appointed Secretary of Commonwealth, 1791 — Calls his son after Go- 
vernor MifSiu — A member of St. George's Society — A trustee of the 
University — Writes the address of the provost — Secretaryship renewed 
— Paymaster-General of the United States forces, in suppressing wes- 
tern insurrection — Receives the approval of Washington — 1796, Secre- 
tary again — Publishes laws of Pennsylvania — Engaged in Blount's 
case, before Senate of United States — Extract from his speech — Go- 
vernor M'Kean appoints him Secretary for the fourth time, in 1799 — 
Appointed District Attorney of the United States by Mr. Jefferson, 
1801 — Same year made recorder of Philadelphia, by Governor M'Kean 
— Resigns from incompatability of offices — A zealous democrat — Still 
devotes himself to his profession — Receives various testimonials of 
gratitude from party and clients — In 1814 becomes Secretary of Trea- 
sury of United States — Fidelity In office — Assumes the trust of acting 
Secretary of War — Delicate and satisfactory performance of duty — Re- 
signs his office in 1816, and returns to his profession — Great success — 
Trial of Sinickson's Will, at Trenton — Labor — Annoyance — Gout — 
Dies immediately upon his return home — Personal description — 
Elegant manners — Family — Descendants — Gratitude of his party — 
Offices conferred upon him and family. 



CHAPTER XIV., 542 

Sampson Levy — Legal and literary knowledge — Favor with the bar — 
Lucrative practice — Good humor — Reads law with his brother — Very 
popular, kind and courteous — The Sampson of the bar — Off-hand speeches 
— Judge Washington's remark upon his speeches — Abundant language 
— Hopeful in all cases — Not critical in language — Well rounded periods 
— But incomprehensible — Instances — Practical wit — Case of division of 
fees — Amusing — Colloquial powers — M'Nally on Evidence — ^Rebuke of 
Mr. Hare — Imperfect education — Ambitious of literarv distinction — In- 
vitation to dine with Joseph Deunie — Disappointment — Mistake — 
Another disappointment — Cramming himself with Plutarch — Labor and 



CONTENTS. xxiii 

learning go for nothing — His literary preparation for a dinner party — Al- 
ways falls on his feet — His opinion upon a will — Fee of one dollar — Im- 
posed npon — A hoax — Case in New Jersey — Offers for admission — Re- 
quired to be examined — Agrees, pro%dded he may first examine the 
judges — Fees put in his hand while speaking, by A. — White witness to 
give color to case — Other amusing instances of his blunders, or his wit — 
Mr. Baize Newcomb — Argument of counsel — Best part of the case — 
Repartees by Mr, Levy — Extraordinary sentences from his speeches — 
Mr. L. of Jewish extraction — Convert to Christian faith — Fifteenth De- 
cember, 1831, dies — Description of his person — Business diminished in 
latter part of his life — Lost none of his cheerfulness, or attachment 
to the bar — Always maintained that "lawyers were the salt of the 
earth." 



CHAPTER XV., 557 

Retrospect and Prospect — Lights of the law — Their influence — Phila- 
delphia the centre of the Union — Purity of the bar — Familiarity and 
kindness to the young — They were the fathers of the bar — Great men, 
in.great as well as small things — Had not reached the fast age, &c. — 
Exempt at that time from bad professional habits — Orators as well as 
lawyers — Tried cases, not so rapidly, but better than now — Mode of 
conducting cases — Departure from their examples — Quarrelsome and 
crafty men avoided — No American reports, except Kirby and Dallas — 
Founders and expounders of the law — They laid its foundations broad 
and strong — Not case lawyers — Drank from the fountain head — A 
blessing to their successors — Civil, but not servile to the court — Lewis's 
conduct towards Judge Chase — No more than others would have done 
— Mutual civihties between court and counsel — Harmony — When busi- 
ness- commenced conversation ended — Demeanor of Supreme Court of 
United States — Effect upon the bar — Judges of State Courts — Deport- 
ment and dignity — Permitted no undue familiarity — Etiquette of courts 
necessary to be preserved — Strangers and loungers excluded — Remark 
of Lord Bacon — Former regulations better than the present — The pre- 
sent much to be condemned — Different in England — A reform sug- 
gested — Annoyance attributable to ^vi-etched court rooms — Better in 
Circuit and District Courts of United States — Better in the counties 
throughout the State — In approving the past we would not disparage 
the present bar — Defects in manner, not matter — Too much despatch — 
Adequate knowledge of the bar and the bench — Unless the evils noted 
be corrected they will increase, and lead to pernicious if not destruc- 
tive consequences — Old age enlistedwith the past against the present — 



XXIV 



CONTENTS. 



Retrospect magnifies the past, as hope in youth magnifies the future — 
Old age imputes the changes in its own condition to surrounding objects 
— Old people tell us the world is not as it used to be — Difference be- 
tween the age of seventy and twenty — We are not aware of the effects 
of time — Judgment suffers, in deterioration of the other faculties — Com- 
parison between youth and age — Mental faculties fail together, and 
contribute tb each others infirmity — Exemplified — Mind obstructed by 
the condition of the senses — " Man a miracle" — Man sees everything 
through himself — ^Whatever is, is right — If perfect here, but little to 
look to, hereafter — End. 



APPENDIX A., . . - 573 

Ancient indictments — George Robinson, butcher — Selling strong drink 
without license — Assault and battery — Drunkenness — Passing "bad 
counterfeit coiue" — Quashed for insufficiency — Bal masque — "For hav- 
ing of to wifes at once" — Know Nothings — Curious petitions — Sunday 
labor — Obstructing street — Loose indictments — forestalling. 

APPENDIX B., 582 

Record in Wilson v. Hill — Plea — Demurrer — Bills of exception. 



|rnrra. 



Auto-Biography, though sometimes necessary, is 
rarely agreeable, either to the Author or the reader. 
Even when written, as Caesar wrote his Commentaries, 
in the third person, the fird person is always reflected 
in the ihird^ and imparts an egotism to the work that 
cannot be disguised. It has been thought proper, 
therefore, in order to avoid as far as possible this 
objection, to precede the present Work by a Sketch of 
the Life of the Author, chiefly taken from "Living- 
ston's Biographies." But, it may be said, why not 
omit the Sketch altogether ? the answer simply is, that 
as the publication relates to a professional experience 
of Forty years, the pubhc has a right to know Avhat 
opportunities or advantages were enjoyed by the Au- 
thor, calculated to qualify him to speak of those occur- 
rences which he professes to describe. This motive is 
offered as a candid apology, for what otherwise, would 
have been properly, and willingly avoided. 

VOL. I. — 3 



BIOGRAPHICAL MEMOIR 



DAYID PAUL BROWN. 



The subject of this Memoir was born in the City of 
Philadelphia, on the 28th of September, in the year 
seventeen hundred and ninety-five, and is now sixty- 
one years old. 

It matters little "to whom related or by whom 
begot ;" it wiU, at all events, be sufficient to say, that 
his ancestors, who belonged to the Society of Friends, 
and who were rather remarkable for their piety than 
any worldly accomphshment, came from England with 
Lord Berkley, upon the first settlement of New Jersey, 
and resided at Berkley, in Gloucester county. 

The father of Mr. Brown, whose name was Paul, 
and who was born in 1767, removed to Philadelphia 
in the year 1790, and there, shortly after, married 
Rhoda Thackara, a native of Salem. 

David Paul Brown was the only son of this mar- 



XXviii BIOGRAPHICAL MEMOIR. 

riage ; and his parents being blessed with an abundant 
fortune, and what is much more to the purpose, with 
a spirit of the most unbounded Hberahty, spared no 
expense in the education, and mental and physical 
improvement of their child. 

It must not be understood, however, that Hke a hot- 
house plant, he was hurried in his growth to prema- 
ture ripeness ; upon the contrary, nature was left to 
her own gradual development, with her sluggishness 
sometimes stimulated, and her exuberance sometimes 
checked, as the season or occasion might appear to 
require. 

Until the age of eight years, the education of the 
boy was exclusively the business of his fond parents, 
and more especially of his mother. 

To her was mainl}^ referred his intellectual and 
moral and, above all, his religious instruction ; and he 
has often, in more advanced age, been heard to declare 
that the lessons of his mother were more deeply im- 
pressed upon his mind, and exercised a more powerful 
influence upon his life and fortunes, than all the other 
instruction, imparted by the host of teachers to whom 
his education was from time to time confided. 

By her, he was taught to read with the greatest 
precision — not in the wdiinmg slang of the schools — 
not coldly and artificially, but in conformity ^^ith the 
spirit and design of the authors to whom his early 
attention was directed. With the mother and the 



BIOGRAPHICAL MEMOIR. Xxix 

son, instruction was a work of love — of maternal 
and filial love ; and the advancement was in pro- 
portion to the holy influence by which it w^as sti- 
mulated. 

No rigid and unbending rules — no chastisement — 
no fears — all was voluntary : and, therefore, all was 
successful. Family hopes being centred upon the 
boy, and the cares of the w^orld not encroaching upon 
the indulgence of parental attention, it will not be a 
matter of surprise to learn, that, when he had passed 
into the hands of other teachers, though at an early 
age, and though he knew, of course, but little, what he 
did know, was hetter known, more perfect, than usual 
under the ordinary courses of instruction. 

He wrote well, for a child ; read admirably ; com- 
posed his doggerel rhyme, sketched and painted ; talked 
accurately, and with a nice discrimination in language ; 
and, above all, was taught, while at his mother's apron 
strings, to think, to reason, as a child to be sure, but 
still as a happy and an ambitious child. 

The time at last came when he was to be handed 
over to sterner teachers. Still, however, his instruc- 
tion may be said to have been domestic. 

Private teachers, upon all branches, were employed ; 
an Italian for drawing in crayons and oil colors — 
English artists for landscape and flowers — a French- 
man for fencing (more for the exercise than the 
art,) and for mathematical instruction, one of the 



^25;x BIOGRAPHICAL MEMOIR. 

first professors in the country — the late Mr. De- 
lauiar. 

To prevent, however, his being an entirely home- 
bred youth, his affectionate parents, under the impres- 
sion that their son was sometime to mingle in society, 
caused him also to be sent to some of the best schools, 
"where, there are those now living who can witness, 
that he was always at the head of his class ; and that 
too, with apparently but little effort or study. 

The evenness of his temperament, indeed, seemed 
always to give him full command of his faculties ; and 
wdien they did not embrace a subject, he was never 
afraid or ashamed to acknowledge, instead of attempt- 
ing to excuse it, and thereby afforded the best opportu- 
nity for improvement, in that in wliich he was deficient. 

His memory, though not otherwise remarkable, was 
perfectly clear and distinct. He either remembered 
or did not remember — ^there was neither doubt nor hesi- 
tation about him ; and although he stood first in liis 
class, and was willing to help others, he never relied 
upon his class, but upon liimself He w^as of course, 
the pride of his father, and the delight of his mother's 
heart. 

Every possible indulgence was lavished upon him ; 
every recreation not only freely furnished, but sug- 
gested. He drew upon his father's exchequer at plea- 
sure and without limit ; and the extent of his pui'se, 
w^ould have shamed the matured magnificoes of the day. 



BIOGRAPHICAL MEMOIR. 



XXXI 



In after life he has often been heard to say, that 
he Avas never so rich and happy as in his early 
youth; for then, in the language of Socrates, he 
wanted least, and therefore approached nearest to the 
gods, who want nothing. 

With him, money seemed to have utterly lost its 
value — it was too common to be impressive — its 
receipt gave no pleasure — its expenditure no annoy- 
ance. Neither seemed to cost anything; and from 
that time to the present, though his professional in- 
come has exceeded a quarter of a milhon, the same 
indifference, the same carelessness, the same reckless- 
ness in regard to wealth, has characterized his career. 

On this subject we have heard a characteristic 
anecdote, which we cannot do better than relate, 
although the occurrence took place some fifteen years 
after Mr. Brown's admission to the Bar. 

The late WiUiam Rawle, with whom Mr. Brown 
was a favorite student, towards the close of life, made 
Mr. Brown a visit, and found him engaged in balanc- 
ing his books. 

After some conversation. Brown turned to his vene- 
rable preceptor and said: "My dear Mr. Bawle, 
fifteen years ago I gave you my check for $400, in 
return for your valuable legal instruction ; since that 
time, I find I have received in my professional career, 
upwards of $100,000." "I know," replied the pre- 
ceptor (himself a most liberal minded man,) "you 



XXxii BIOGRAPHICAL MEMOIR. 

have been very busy, and it is necessary to be very 
busy, for a young man to make sucb a sum in so 
short a time." " 0, but," rejoined Brown, " you don't 
know how busy I have been, I have spent it all; 
there is not a dollar left. Yes, I have spent it upon 
principle. There are two kinds of extravagance. 
That which arises from a love of display, and that 
wdiich springs from contempt of mere wealth. Mine 
is the last. If I could become rich, I should become 
indolent, and lose in fame what I gained in money. 
This is not the case perhaps with all, but it is with 
me." The old gentleman laughed heartily, and they 
passed to other subjects more agreeable to both. 

To show the high estimation in which the pupil 
was held by his revered preceptor (than whom there 
never was a purer man, or more accomplished gentle- 
man,) we cannot do better than insert in this ram- 
bling sketch the following letter, written by him to 
Mr. Brown, some ten years after his admission; 
surely the censure or applause of such a man, is worth 
more than that of a whole theatre of ordinary critics. 

" My dear sir : -- ' 

" You borrowed of me, some time ago, the first volume of Guth- 
rie's Quintillian, will you allow me to send you the second, with the 
request that you will receive them both into your library. 

" The plain binding will not affect the internal merit of an author, 
who, the first that is known to us, systematically and Mly laid down 
the precepts, not only of Forensic, but of general oratory; and who, 
were he now living, would be delighted to perceive a full illustra- 



BIOGRAPHICAL MEMOIR. XXXiii 

tion of what he requires to form an accomplislied orator, in your- 
self. 

" With unfeigned respect and esteem, 

"I am, dear sir, your affectionate friend, 

"W. RAWLE. 

"March Zlst, 1828. 
"To Datid Paul Browx, Esq." 

But we have wandered from our task — let us return : 

At the age of fifteen, in the year 1810, the subject 
of this memoir lost, after a protracted illness, his 
devoted mother. She died, leaving him her blessing ; 
and what was, if possible, even better, the benefits of 
her instruction, and the example of a life of Christian 
piety and practical vktue. 

This w^as a sad blow to domestic happiness and filial 
hope. But though cut loose from his moorings in a 
mother's bosom, he, nevertheless, enjoyed the fostering 
care and tenderness of an affectionate father; yet who 
at such an age can supply a mother's, and such a 
mother's, loss ? 

The shock for a long time seemed to have paralyzed 
the boy. He became moody, confined himself to the 
house, resorted to no exercise, engaged in no amuse- 
ments, moped over his books day after day, and month 
after month, until at length he dwindled into a mere 
anatomy of himself. 

The father naturally became alarmed — the physician 
shook his head — aU books were condemned — all stu- 
dies prohibited ; yet the prohibition only strengthened 



XXXiv BIOGRAPHICAL MEMOIR. 

the appetite for the forbidden fruit. At last, in order 
to a change of scene, it Avas determined that the invalid 
should be sent to Massachusetts, to the Rev. Dr. Dag- 
gett, a distinguished scholar, in order that he might 
advance himself in the knowledge of the classics. 

Apparently indifferent, he bade farewell to his sur- 
viving and sorrowing parent, and took up his abode 
with the reverend clergyman, where he remained seve- 
ral years, receiving all the time his former ample pecu- 
niary allowance. It was during this absence, while 
enjoying the benefits of a vacation, that he wrote the 
" Sandemanians," a short extract from which may be 
pardoned, as exhibiting his style of composition, and 
expressing his views at that early period, on the sub- 
ject of simplicity in the worship of the Most High : — 

" How great is the error of the supposition, that ornament and 
splendor are calculated to increase the attractions and solemnities of 
Religion ! Never is she so impressive, so awe-inspiring, so lovely — 
so altogether heavenly, as when exhibited in her most artless simpli- 
city. The work of man may be improved and adorned by the 
inventions of man — its defects may be concealed and its beauties 
heightened ; but the works and emanations of the Deity are beyond 
the reach of human art, and are impaired in their effect in propor- 
tion as they are either decorated or disguised. Neither the sun nor 
the stars can ever be delineated by the most perfect artist. The 
works of the Almighty are not to be counterfeited — far less are the 
principles of Divine grace to be recommended to regard and venera- 
tion by the glare and glitter of magnificent altars, or temples tower- . 
ing to the skies. These are the outward habihments and floui'ishes 



BIOGRAPHICAL MEMOIR. XXXV 

of piety, and not its &oul ; they contribute to disturb and distract, 
rather than to subdue and concentrate the thoughts of the worship- 
per; they subject man to look at his Creator, as through a glass, 
darkly, instead of viewing him face to face, and bowing at once in 
abject nothingness, before the dazzling and awful effulgence of eter- 
nal glory. I do not know that I have succeeded in these brief 
remarks in furnishing the reasons for a preference of unostentatious 
worship, but I know upon the occasion referred to, those reasons 
were so deeply felt as never to be forgotten." 

At tlie expiration of his term of studies, lie returned 
with the highest honors to his paternal home, feebler 
in body than at the time of his departure, but strength- 
ened and enlarged in mind. 

Upon being received into his father's arms, that 
tender parent, unable to subdue his emotions, ex- 
claimed, " My dear boy, you are reduced to a skele- 
ton." "Yes, father," returned the boy, "but you will, 
I hope, find that in one sense I am much more substan- 
tial than when I left you ;" — of course referring to the 
improvement of his mind. 

Everything was again made tributary to his comfort. 
He had his horses at command, but never rode ; was 
visited by others, but rarely went into society ; rose 
early ; retired invariably before ten o'clock ; and lived 
in the most frugal and abstemious manner in the midst 
of luxury. 

Having now reached his seventeenth year, it became 
necessary that he should make choice of a profession. 



XXXVl 



BIOGRAPHICAL MEMOIR. 



He seemed rather inclined to the law, (being at that 
early age a ready declaimer,) but so indifferent was 
his choice, that he at once relinquished it in favor of 
medicine, at the mere suggestion of his father; and 
was accordingly introduced to Dr. Benjamin Rush, as 
his pupil. 

This was an unlucky choice of a profession. No- 
thing is more pernicious to a feeble and nervous 
frame, than the study of disease. We are apt to 
imagine that we are afflicted with almost all the physi- 
cal ills that "flesh is heir to." Hypochondria not 
unfrequently is the result; and in the preparatory 
effort to cure others, we often destroy ourselves. Like 
a confirmed dyspeptic, we most crave the very food, 
that most contributes to perpetuate or strengthen our 
complaint. 

In about six months the student was reduced to 
the condition of an almost hopeless patient ; but how 
eventful is life ! Just at this time,* full of age and 
honor. Dr. Rush died, and as the attachment was 
rather to the physician than the science, an entke 
revolution in the career of our subject was at once 
produced. Prior to tliis, some doubts of the pro- 
priety of the selection glanced into the father's mind. 
Now these doubts worked an entire change. 

The pupil was at once withdrawn from the science 

* Dr. Benjamin Eush died 19th of April, 1813, in the sixty-eighth year 
of his age. 



BIOGRAPHICAL MEMOIR. XXXVii 

of physiology and pathology, and his original inclina- 
tion to the law having been somewhat strengthened, 
he was placed under the instruction and in the office 
of one of the most distinguished lawyers in the Union, 
the late William Rawle, a man at that time of princely 
fortune, and whose fame was co-extensive with the 
country. 

It is unnecessary to carry our reader through a law 
student's studies. Let it suffice, that for the fijst 
year our student read for twelve hours a day. After 
that time, by the advice of his preceptor, he reduced 
the time to eight hours, and finally settled down upon 
six hours. He, in addition to this, regularly attended 
the courts for several hours in the day, during the 
last two years of his novitiate, and thereby became 
not only familiar with the usual form of business, but 
was better acquainted with the former and elder mem- 
bers of the bar, than most members of the legal pro- 
fession, who were many years his senior. Indeed, his 
intercourse was chiefly with the aged men of the pro- 
fession — Lewis, IngersoU, Tilghman, Dallas, Binney 
and Sergeant, were then in their full vigor, and he 
enjoyed the benefits of their forensic example ; and 
truly the country never witnessed a more glorious 
example. 

In the latter part of the year 1815, a year before 
the termination of his course of study, a second shaft 
from the insatiate archer deprived him of his father, 



XXXViii BIOGRAPHICAL MEMOIR. 

and left Mm alone in the world, possessed, it is true, 
of a competent fortune, but cut loose, as it were, from 
all those kindred ties that make life most precious. 
But he that has suffered the greatest evil in life, can 
suffer no more ; like death, it cures every thing. 

Tliis last blow, struck from him his last dependence, 
and from that moment, though he stood alone, he 
relied only upon himself, and stood firmly. "My 
chief grief," said he, in after days, while in the full 
tide of success, 

" My chief grief is, that those who watched over my spring and my 
summer with such untiring affection, should have never lived to 
behold the harvest of their own parental care. I should have been 
most happy just to show that their attentions were not entirely unde- 
served and unrequited. 

" 'Man proposes and God disposes.' Ambition at length took 
the place of filial love ; time cicatrized the wounds of the heart ; 
but I shall never forget, that those for whose good opinion I was 
most solicitous — those to whom I was bound most deeply in grati- 
tude and filial duty, received no other repayment than from the 
tears of affection and sorrow, that were shed upon their graves. 
In short, my ambition was divested of its chief pride ; and to this 
moment, in my greatest professional triumphs, my mind still recxirs 
to the past, and cannot but acknowledge that its enjoyment is 
incomplete." 

In the month of September, 1816, at the age of 
twenty-one years, Mr. Brown havmg read law for 
nearly four years, and undergone the usual examina- 
tion, was admitted to practice in the District Coui^t 



BIOGRAPHICAL MEMOIR. 



XXXIX 



and Court of Common Pleas in the City of Philadel- 
phia, and soon after he was admitted to practice in the 
Supreme Court of the State, and in the District, Cir- 
cuit, and Supreme Courts of the United States. (We 
cannot do better, perhaps, by way of offering some 
notion of his difficulties, than to introduce here into 
our hasty sketch a description of his first cause, from 
his own pen entered in his diary, some years after- 
wards.) 

" After toiling through the usual term allotted to students of the 
legal profession, on the day on which I completed my twenty-first 
year I submitted myself to the necessary examination, and was 
admitted to practice as a member of the Philadelphia bar. No 
very distinct impression of the emotions then felt remains to me 
now, after a lapse of many years. Neither my prospects nor my 
hopes were the brightest, and although a devotee to my profession, 
mine was a devotion not founded of course in experience; and 
therefore liable to be much impaired, if not utterly destroyed, by 
encountering obstacles not anticipated, or neglect, still more difficult 
to be endured. Yet from neither had I any claim to exemption, at 
least so I think, in more matured reason, in birth, in fortune, or in 
talents. For the most part unknown among the members of the 
bar, with a moderate patrimony, and with the benefit of the best 
education which the times could afford, I still felt, in presenting 
myself before the public, that everything must depend upon two 
contingencies ; first, whether the opportunity would be afforded for 
a favorable display of the limited abilities which I might possess ; 
and secondly, whether I should be capable of employing that oppor- 
tunity to advantage. Doubts like these must more or less influence 
every rational being in entering upon the prosecution of every sci- 



xl 



BIOGRAPHICAL MEMOIR. 



ence, and in none more than the arduous science of the law. My 
office was opened ; but in despite of the allurements of a well-exe- 
cuted sign, and a tolerable location for business, weeks and months, 
I had almost said years, rolled over my head, without improving my 
pocket, brightening my prospects, or increasing my ajffection for the 
object of my choice. Indeed, I am not certain that my ambition 
was not a little chilled, and I am certain^ that without the slightest 
inclination actually to abandon my forensic career, I, nevertheless, 
occasionally looked with something like loathing, to some half a 
dozen books which decorated a solitary shelf in my study. I found 
that the notion entertained prior to admission, that when my ' calling 
and election' had been made sure, I should be disposed to enjoy in 
delightful composure the companionship of the sages of the law, was 
hut a notion, and that it was totally unable to resist the superior 
interest and attraction with a youthful mind, which was furnished 
by a flood of poetry and romance, daily issuing from the press, and 
literally flooding the land. And why should it be considered 
remarkable ? No man, in his senses, ever pretended that in itself 
alone, the acquisition of any science could be matter of delight. It 
is in the vista which it is supposed to open to professional elevation 
— to worldly advancement — phantoms which too often vanish as we 
approach them — that its charms chiefly consist. My eyes were 
already closed upon these illusions, and the mind, in the effort to 
relieve itself from despair, turned to other subjects, if not more sub- 
stantial, still more fascinating for the time. The end of the first 
year found me occupied with everything but law. The tranquillity 
of my ofiice, had I think, never in a single instance, been disturbed 
or invaded by the foot of any obtrusive client — I was about to say, 
of any individual — for even courtesy shrinks from and shuns the 
unfortunate ; when, on the first morning of the ensuing year, a fellow- 
student of mine, who was admitted about the same time, and who 
has since risen to considerable eminence, stalked into my office, as 
he said, to offer his condolence ; — and who could have been more 



BIOGRAPHICAL MEMOIR. -^H 

sincere in his sympathies ? He had also had, not a single client — 
'Not a client!' said I; and I am afraid there was a lurking satisfac- 
tion in the inquiry. 'Not one, by all that is wonderful!' said he; 
'that is, not a solitary fee; and yet, I don't think I have any right 
to complain.' 'No right to complain !' I rejoined ; ' that may be, but 
you have nevertheless a clear chance of starving ! — to starve and not 
complain — this is an ungrateful world :' and I was going on to say 
something more, when he requested me to listen to him a moment, 
and I should perceive that his remarks were perfectly just. 'I have 
been,' said he, 'like yourself, a year at the bar — I have never 
received a farthing, or been retained in a single suit. This morning, 
for the first time, my door opened to a visitor, an old lady, who 
called upon me — she being the widow of a Revolutionary hero — for 
the purpose of receiving instruction as to the measures necessary to 
be adopted in order to procure a pension or bounty from the United 
States. If she had asked me the readiest cut to the moon, I should 
not have been more confounded. I had no book at hand that con- 
tained the necessary information, and I should have been ashamed 
to turn to it, if I had. I faltered and floundered for some time, 
but the question was too direct to be evaded, and I waited upon her 
to the door, while I honestly confessed — what she must previously 
have discovered — that I really did not know.' 'Now, sir,' said he, 
in a tone of mingled mirth and sadness, 'what right have I to com- 
plain? the moment I shall be satisfied that I am a thorough-paced 
lawyer, ripe and ready for every ordinary inquiry, I shall feel my- 
self authorized to pass my maledictions vipon the blindness and stu- 
pidity of the world, by which my attainments are treated with 
unmerited contempt! But not now — not now; — heaven forbid! 
The old lady has satisfied me that the fault is in myself.' Notwith- 
standing these were no laughing matters, my risibles were not a little 
provoked by this occurrence, and my despondency — such is our 
nature — somewhat alleviated by the equality of our conditions. We 
parted — both in a better humor than when we met — and I also 
VOL. I. — 4 



-j^]^ BIOGRAPHICAL MEMOIR. 

came to the conclusion, that it was quite as probable that I was not 
right, as that the world was entirely wrong. Acting under the 
influence of this idea, I determined to appear again in the busy 
haunts of life — from which I had long been closely secluded — to 
betake myself to the courts, where I was an entire stranger ; and in 
short, to find out from ocular proof, how it was possible that ' the 
great globe' should move, without apparently the slightest con- 
sciousness of the loss which it sustained in my person and endow- 
ments. 

" One day, shortly after arriving at this determination, passing 
through the avenue between the courts, my attention was attracted 
by a crowd assembled on the steps, where an old woman — for 
women, it would seem, are ever connected with the greatest good 
and evil in life — with a sort of inspired phrenzy, like that of Noma, 
of the Fitful Head, was haranguing the wondering, gaping multi- 
tude, upon the cruelty and barbarity of some one, whom she did 
not very clearly designate. This arose, perhaps, either from her 
having named the individual before my arrival on the margin of the 
assemblage, or from her resembling some orators, who think it quite 
enough to speak, and therefore leave you to find their subject by 
your learning. Her manner — and in this also she was governed by 
high authority — was more effective and intelligible than her matter, 
and directed by that, I was induced to peer more closely into the 
crowd, in the very centre of which I at last discovered a sight much 
more than sufficient, to excite a female heart, or move a female 
tongue. 

" In the very centre of this crowd, I say, stood, or rather bent, a 
little girl, whose suffering, it seems, formed the subject of the philip- 
pic to which I have already referred, and to whom the aged sybil 
ever and anon pathetically pointed. She appeared to be about eight 
or nine years old, wretchedly attired, the back part of her dress torn 
open, and her body exposed. Gracious heaven, what a sight ! Her 
little limbs were covered with welts and extravasated blood — her 



BIOGRAPHICAL MEMOIR. 



xliii 



eyes were streaming with tears, and her youthful heaii, throbbed as 
though it woukl burst. Who could behold such suffering and be 
silent 1 I ventured to inquire to what this shocking spectacle in a 
civilized community was attributable? — an unlucky question. Atten- 
tion was directed immediately to me, and whether there was any- 
thing professional in the mode of inquiry, or whether some individual 
in the large assemblage knew that I was somehow connected with 
the law, I know not, but it was at once insisted that I should point 
out the road to redress. Although it would be base to say that my 
feelings were not deeply enlisted, the idea of being suddenly thrust 
into an argument, was very much like "looking a lion in the mouth; 
and I really think I would rather have taken a beating, equal to that 
of the little sufferer, than to have been called upon to utter those 
frightful, those appaling words ; ' May it please your Honor.' 

"What could be done? There is something in the helplessness of 
childhood, that appeals most strongly to the heart. I was not a 
parent, it is true, but nature ever prepares us for those affections 
which, when they arrive, are the most despotic and resistless in their 
sway. The age — the sex — the tears — the blood of the sufferer, 
might have moved a savage — but, added to all these, the accounts 
of her inability to cojnmunicate by language the extent of her cala- 
mity, rendered it doubly impressive and affecting — what, I say, could 
be done ? Who could resist such an appeal ? Even if the nobler 
emotions of the heart could have listened unmoved to her untutored 
grief, the sense of shame which every man must experience in 
refusing his aid, when thus strongly and publicly appealed to, could 
not be overcome. I took the little stranger by the hand, ushered 
her into the ofl&ce of the chief magistrate of the city, and there 
endeavored — for it was my first appearance, as well as her's, before 
the awful face of justice — there endeavored so to collect my scat- 
tered thoughts, as to present something like a connected detail of the 
injuries she had endured at the hand of her master. It seems that 
the child — a matter of which my readers have not been apprised — 



^^^ BIOGRAPHICAL MEMOIR. 

was one of a large family of German Redemptioners, as they are usu- 
ally called, recently arrived amongst us. She, together with her entire 
family, had been sold or bound to different individuals throughout the 
State, for a certain number of years, for the purpose of discharging 
the amount of their passage money. Her father and mother, as I 
succeeded in gathering, were purchased by some gentlemen in the 
interior of the State. Her brothers and sisters had also been pur- 
chased by persons far removed from the city, and she, the youngest 
of the little flock, cut off and estranged from her native support, fell 
into the hands of the individual whose causeless barbarity was the 
subject of complaint. The case was returned to court, and in fearful 

suspense I awaited the trial. 

*• # , * * * * * 

" My fears, however, had no effect other than to lend their own 
wings to the flight of time, and the morning of the eventful day of trial 
arrived — the day that was to decide upon my destiny forever. How 
deceitful is this world ! To visit our temples of justice, and to listen 
to the aspirants for fame — what is more delightful, what is more fas- 
cinating? What a sad reverse, however, does reflection present, 
while she traces them step by step, through the thorny and perplex- 
ing mazes of intricate science — bartering their tranquil slumbers for 
the illusions of fame ; wasting their lives fretpently in unavailing 
efforts to enjoy or to grasp what hope had so long promised, until at 
last the lights of life and hope are extinguished together. How 
dearly purchased ; and alas ! how vain are the charms of ambition ! 
" What a miracle is the mind of man ! shrinking even from the 
thought of past terrors. At this day, when the records of time are 
impressed upon my brow, and I feel his icy fingers at my heart, I 
can hardly bring myself, without too much emotion, to review the 
scene of my earliest professional struggle. Haggard and worn-out — 
not with preparing for my cause, but with thinking of it — on the 
appointed day, not induced by ambition but impelled by dread of 
shame, and yet hardly certain whether the greater shame pursued 



BIOGRAPHICAL MEMOIR. xlv 

or awaited me, I entered, for the first time professionally, tlie 
chambers of justice — the chambers of death would not have been 
more gloomy, scarcely less welcome. The hall was crowded to the 
very ceihng, either actually or by my peopled imagination. Yet I 
saw nothing distinctly; there was a general buzz — not of applause — 
but, as it seemed to me, of consternation, at seeing the approach of 
counsel and client ; the former, if possible, evidently more terrified 
than the latter. I sat down beside the complainant, scarcely know- 
ing how; got up without knowing why, and, in the very endeavor to 
appear composed, must have satisfied every practiced observer, that 
composure was no inmate of my distracted mind. When sufficiently 
collected to embody the shadowy forms around me, I perceived, 
seated immediately opposite to me, the defendant and his counsel — 
two experienced and distinguished members of the profession, men 
who had been accustomed to sway the sceptre of the mind with 
kingly hand, not only composed, but eager for the encounter. When 
I saw tliis, strange as it may seem, I confess I felt relieved — there 
was something, it seemed to me, like a contemptuous smile playing 
around the lips of the gentlemen, and I felt for a moment as though 
my soul was in arms ; it was but for a moment — the feverish excite- 
ment subsided, and left me, if possible, more languid than before. 
The case was called — the jury sworn — when, as if I were doomed 
to be tested by every affiction, the attorney-general, a gentleraan of 
distinction in the profession, though but little older than myself, pri- 
vately stated to me that it was not his design to assist in the 
prosecution, but that having opened the cause, it would be left 
entirely to my management. Ambition, pride, shame, had alter- 
nately ruled in my bosom; their voice, though heard for the time, 
was soon lost in the tumultuous clamor of fear that pervaded their 
kingdom. This, however, was the last blow, and the result was 
despair — deep, unalloyed, unmitigated, unresisted. From that mo- 
ment my whole character was changed, and 'every petty artery in 
the body swelled with a giant's strength.' I had often heard of the 



^\y[ BIOGRAPHICAL MEMOIR. 

stillness and calmness of despair, but never felt it before or since. 
How salutary a lesson did I derive from the sufferings of the occa- 
sion ! How intense is the commiseration I feel upon the professional 
debut of one of my young friends ! and although it rarely happens 
to them, to make their first appearance, or launch their little bark 
upon so stormy a sea as that by which mine was tossed, neverthe- 
less, to a sensitive mind, the first public essay, whatever may be its 
character, and whatever its occasion, is attended by the most horri- 
ble anxieties, and perhaps it is necessary that it should be so. He 
who commences his career with composure, will prosecute it with in- 
difierence, and terminate it in disgust. I acquit the gentlemen 
opposed to me of any design to increase my difficulties. Scarcely, 
however, had the case been opened, when it was suggested that the 
defendant had the right to insist upon the indorsement of the name 
of the prosecutor, and some authorities were referred to in support 
of the privilege. Those who were friends before, seemed to shrink 
from responsibility. I had no authorities to oppose them ; my scanty 
supply of legal lore hardly furnished me with the definition of the 
offence about to be tried, much less with that practical knowledge, 
without which the acquisition of legal principles becomes rather an 
incumbrance than an assistance. I simply suggested to the court, 
that the application appeared to me to be too late, after the jury had 
been sworn ; that the jury might themselves afford to the defendant 
all the advantages to which he was entitled, by finding the prosecu- 
tor in the verdict ; but if neither of these grounds was considered 
sufficient by the court, I begged, in behalf of a friendless child, to 
be allowed the honor of recording my own name as the prosecutor, 
and thereby at once removing all preliminary questions upon our 
right to proceed. This was partly sincere, no doubt, but I dare say 
it was chiefly attributable to my having, at the time, more ready 
money, than ready reason. The court, fortunately for us, adopted 
the ground first suggested, refused to direct the name of the prose- 
cutor to be indorsed, and the cause was accordingly ordered to pro- 



BIOGRAPHICAL MEMOIR. ^Ivii 

ceed. The counsel for the defendant then publicly called upon the 
attorney-general to adopt or reject the case as a public prosecution. 
With a magnanimity for which he deserved, and received credit, he 
stated that although disposed to leave the matter entirely to me, he 
did not think his oflB.cial duty would justify him in throwing reproach 
upon a case, founded, apparently, in a desire of public justice, by 
declaring it unworthy of public support ; and that if it were insisted 
upon that he should either repudiate or assist in, the prosecution, 
he would elect the latter, which he accordingly did, very much to 
my gratification and the benefit of my client, and unquestionably 
to his own honor. 

" The cause then proceeded. The facts already adverted to, 
were distinctly proved. The defendant chiefly relied for his acquit- 
tal upon his general character, which was irreproachable — upon 
alleged misconduct of the child, and particularly that she had, 
upon one occasion, been found in possession of a small sum of 
money, which, she said, had been given to her by the defendant's 
brother, and which the brother denied. The cause lasted nearly 
four days, the excitement daily increasing, until at length, the 
period arrived, when it became my duty to address the court and 

" Terrified and trembling I arose. The temporary agitation of 
the multitude, and then the dead silence that succeeded — the ima- 
ginary importance of a first efi'ort — its probable effect upon my 
future life — but above all, the desire to vindicate the principles of 
- humanity, which had been outraged, all contributed, by their 
claims upon my exertion, to impair those feeble talents which might 
have been effectually exercised, if less powerfully put into requi- 
sition. 

"As though seeking consolation from every quarter, and anxious 
to conciliate the opinion of my opponents, the moment before com- 
mencing my speech, I turned to one of my antagonists and said, 
' This is awful ; it is very much like facing a full-mouthed battery,' 



xlviii BIOGRAPHICAL MEMOIR. 

in the expectation that he would cheer me by the reply, that my 
fears were imaginary — a few words, and I should be relieved from 
anxiety, or something to that amount. But, on the contrary, my 
anxiety was redoubled by his remark, that it was truly a great day 
for me, as I should probably date my rise or ruin from it. All 
further intermission was here luckily cut short by a direction from 
the court to commence the discussion, and I began. For some 
minutes I remembered nothing, with the exception of one circum- 
stance, which showed that I was not entirely deprived of conscious- 
ness. Having, while speaking, thrown out my hand, I was shocked 
to perceive that it trembled like an aspen leaf, and immediately 
withdrew it until the acquisition of greater courage should render 
it more confident in the cause. "When I once got fairly started, the 
reaction of nature upon the system was most powerful. The excite- 
ment into which I was wrought, presented too, most boldly to my 
mind, all that I ever read or knew. The audience, bore away by 
the occasion, and only requiring that the prominent features of it 
should be discreetly exhibited to them, broke in upon my speech 
with loud and long-continued applause ; and after haranguing the 
public rather than the jury for about three hours, I sat down 
amidst the most tumultuous acclamations that ever disturbed the 
serenity, or shocked the dignity of a court of justice. The whole 
effect of the speech was dramatic. The introduction of the child, 
whom I apostrophized in the course of my tirade, was electrical ; 
the entire assemblage melted into tears ; in short, rage, indignation, 
sorrow and compassion ruled the tumultuous throng by turns. ]My 
antagonists followed. They managed their cause with infinite 
address and ability; but in such a case, and with such an audience, 
it was not in the power of man to succeed. The case was closed 
by the attorney-general with great force and pathos, and the defend- 
ant was convicted. 

" This may be said to be a strange world — there is nothing in 
romance equal to the realities of life. M}^ office, which, as I have 



BIOGRAPHICAL MEMOIR. xlix 

said, before that time was deserted, now, by this sudden and unex- 
pected chance, became thronged with clients, anxious to unload their 
griefs and their pockets. My seclusion and tranquility were forever 
exchanged for public display and ever-changing scenes of noise and 
strife. With all the delight attending upon flattering hopes, is there 
not room to doubt here, whether the change, favorable as it appeared, 
really contributed to increase the actual balance of human happi- 
ness ? My means, it is true, were extended, but my expenses were 
necessarily much increased. My pleasures were of a more positive 
character, but so were my pains. Daily I inhaled the buoyant gale 
of popular favor, but I was also daily subjected to perils and pen- 
alties which nothino; but untirincj ambition could endure. I am 
even surprised, that I should ever have rejoiced at a change which 
condemned me to unremitting and interminable toil ; and with the 
characteristic capriciousness of man, I look with anxious and desiring 
eyes upon the retirement and solitude which at tliat time was as 
much abhorred, as it is coveted at tJds.'''' r 

In 1819, Mr. Brown, tli&n about twenty-four years 
of age, was honored by the Washington Benevolent 
Society witli the appointment of Orator, to dehver the 
Annual discourse upon the birth-day of the Father of 
his country. This duty was performed at the Hall, 
with an audience of more than five thousand persons ; 
and without the aid of any manuscript. When it is 
remembered that this high post had previously been 
conferred upon such men as Judge Hopkinson, Mr. 
IngersoU and Mr. Chauncey, veterans at the bar, the 
distinction will not be deemed inconsiderable, or unwor- 
thy of notice. From year to year, popular favor 



I . BIOGRAPHICAL MEMOIR. 

seemed to accumulate uj^on the subject of this memou^; 
shortly after, he was engaged in some of the most 
exciting of the Roman Catholic disputes, (arising out 
of dissensions between the body of the clergy and the 
late INIr. Hogan,) which difficulties agitated the city 
for several years, and employed some of the first tal- 
ents in the country. In 1822, he conducted the prose- 
cution against Boyer, Seitzinger and others, before the 
Court of Quarter Sessions in Berks county, of which 
the Hon. B. Porter, was president. The case was one 
of great importance, arising out of an extensive con- 
spiracy to defraud the merchants of Philadelpliia. 
The trial occupied upwards of ten days, and the de- 
fendants were represented by some of the ablest men 
in the State — Marks John Biddle, Charles Evans, 
James Buchanan, Samuel Baird, and several others, 
all of whom exhibited great zeal and consummate 
skill. Mr. Brown was at this period but twenty-six 
years of age, and it is sufficient to say of him, that he 
maintained his composure and his ground, against such 
fearful odds. 

In 1824, Mr. Brown was engaged by the Honorable 
Bobert Porter, President Judge of the Common Pleas, 
in his defence upon an impeachment before the Senate 
of Pennsylvania, which impeachment partly arose out 
of the trial for conspiracy just referred to. Upon the 
trial, Mr. Brown was the only counsel for the respond- 
ent ; and in defiance of a powerful opposition by the 



BIOGRAPHICAL MEMOIR. l{ 

attorney-general and the committee of the Lower 
House, succeeded, after a laborious trial of several 
weeks,; in a most honorable acquittal of his client. 
The difficulties encountered by him upon this occasion, 
considering his youth, were such as are rarely under- 
gone; and no young lawyer can fail to sympathize 
with him, while perusing the following anecdote, which 
w^e have heard related by himself, and almost in the 
very words : 

"On the fourteenth day of the trial, the evidence being closed, 
the attorney-general summed up his case, and finished about the 
usual hour of the evening adjournment. I was to follow the next 
morning for the defendant. I, of course, returned to my lodgings, 
brim-full of anxiety, and as is my wont, expecting a night of labo- 
rious examination and study. It has been my habit, always to re- 
serve my main preparation until after the evidence has terminated 
— but, in the present instance, that delay was rendered inevitable 
from the pressure of the trial, and protracted sessions of the Senate. 
After taking my dish of tea, I locked my chamber door, drew 
the strings of my satchel, and pulled out, as I thought, the recorded 
labors of the last fortnight. But to my astonishment, the bag only 
contained the journal of both Houses — not a particle of my notes, 
the charges, or the evidence. I confess this appalled me — it was 
now ten o'clock at night, and with all appliances and means to 
boot, I had no time to spare. I immediately rushed to the Senate 
chamber, opened my desk in search of my notes, but it was empty. 
I next hastened to Judo-e Porter's lodo-inws, but he knew nothing of 
the stray papers. Finally, I turned my disconsolate steps again 
towards my own apartments, and I confess I think would have 
been happy if any one had blown my brains out on the road. The 



]jj BIOGRAPHICAL MEMOIR. 

reflection, or ratlier the visions that passed through my mind, were 
of the most painful and distressing character. I felt as if all my 
past life was to go for nothing ; as if this was the crisis of my 
fate. To appear before the representatives of the entire State — 
heralded by proud anticipations, and break down in the very centre 
of a vast community, 'where either I must live or have no life,' 
was certainly enough. But there were matters beyond these. The 
respondent, a man of high character and fortune, and with an 
interesting, large, sympathetic family, was to be utterly ruined in 
his fame and prospects, by confiding his defence to a thoughtless 
and improvident young man, who had not only neglected the reason- 
able preparation of the case, but had actually lost the documents, 
and the evidence, so vital to the defence. 

" As to asking the Senate to extend any indulgence in the way of 
a postponement of the argument, that was out of the question. 
What then was to be done ? The die seemed to be cast, and my 
very apprehensions served only to redouble the difficulties, to which 
I was actually subjected. There is a courage, however, in despair, 
that nothing else can match. I felt like the leader of a forlorn 
hope, who, in the extremity of danger, loses even the sense of fear. 
I remember it as if it were yesterday. I entered my wretched 
study, which I had prepared for a night of toil, blew out the lights, 
and attired as I was, sprang into my hapless bed, to pass a fever- 
ish, a sleepless, and a restless night. It^was the only night's rest I 
ever lost ; yet, in its influence upon my professional character, it 
was the best night of my life. With closed eyes, and a perfect 
concentration of all the faculties of my mind, I reviewed, in their 
order, the occurrences of the trial, so far as they were essential to 
the defence; an immense efi"ort of memory, the greater for my 
having at all relied upon the notes, in the progress of the cause. 
The charges were fourteen in number; I began of course Avith 
those. I then turned my mind to the answers to the specifications, 
by which I arrived at the exact points in issue, either in fact or in 



BIOGRAPHICAL MEMOIR. ]^ 

law. I next passed to the names of the different witnesses, amount- 
ing to one hundred and fifteen, examined on the part of the State, 
and the defendant; I then recalled the respective testimony upon 
the different accusations; the discrepancies, contradictions, motives, 
the means of knowledge, and the respective weight of the witnesses, 
in regard to the points in controversy. This was followed by a dis- 
cussion of the legal principles, applicable to the relative condition of 
the prosecution and defence. And lastly, I reviewed the public 
services of the respondent from the time he was an officer in the 
Revolution, at the age of eighteen years, down to the moment of 
the present trial. I had barely reached thus far, when the bell of 
the Capitol sounded, and I was summoned, half dead, to my argu- 
ment. At all events, I didn't require to dress, and I was quite 
ready, if not entirely j^^'rcparec/. As I walked up the middle aisle 
or avenue to commence my argument, my client, who, with all his 
merits, was the most absent man in the world, hastily approached, 
and said, ' My dear friend, I have found your papers, having locked 
them up safely in my desk.' I had merely time to say, with some 
impatience I fear, 'It is of no consequence now;' and the argument, 
which occupied the entire morning, at once proceeded, and on the 
next day, eventuated, as has been said, in the honorable acquittal of 
the defendant. 

" I refer to this, not simply for the story, but for its moral ; for 
the encouragement which it is calculated to impart to the youthful 
advocate in similar circumstances. Depend upon it, what must be 
done, can be done. ' The gods are ever with the brave.' To be 
resolved is every thing. 

"AU the composure that I have ever since enjoyed in the most 
anxious struggles, has been readily traced to the early events which 
I have thus described. No circumstances could be more unfavor- 
able ; and therefore, having encountered the greater evil, I am not 
to be taken by surprise, but feel ready to combat with the less. A 



]jy BIOGRAPHICAL MEMOIR. 

rougli youth makes a calm old age. Adversity is a severe teacher, 
but its lessons are rarely forgotten." 



During the pendency of this very important case, 
Mr. Brown became engaged to Emmeline Catharine 
Handy, the accomplished and only daughter of Sewell 
Handy, late of the United States Navy, and grand- 
daughter of James Hutchins, Esq., of the Eastern 
Shore of Maryland. 

This marriage took place at Philadelpliia, on Christ- 
mas eve, in the year eighteen hundred and twenty-six, 
and has been blessed with the birth of five sons and 
two daughters, all of whom are still living. 

The new relation into which he had entered was, of 
course, an additional incentive to professional exertion. 
Still, although business increased, his labors were ren- 
dered comparatively light, from having become habitu- 
ally familiar. In his own language, " he could now 
sleep upon his laurels," or make speeches with impu- 
nity, wdiich would have ruined him if he had been ten 
years younger. Such was his just estimate of the 
patronage and judgment of the world. The trial lists 
of the courts will show, that for years his business 
took a conspicuous part, in the number of cases 
brought in the civil courts ) and when it is remem- 
bered that his engagements were of the most varied 
character — that he was a leader, too, in the hea^iier 
business of criminal proceedings, and was not unfi-e- 



BIOGRAPHICAL MEMOIR. Jy 

quently employed in four other States of the Union ; 
it may well be believed that the duties of his profes- 
sion afforded him but little time for relaxation. When 
upon one occasion a friend kindly inquired, " How is 
it possible that you can do so much business ?" he 
simply answered, "Because I have got so much to do." 
" But," rejoined the other, " How can you indulge in 
poetry and general literature?" "Because," replied 
he, " it enables me to return to my more rugged pur- 
suits with greater alacrity and renewed strength. The 
mind takes its direction from habit ; if you wish to 
strengthen it, you must direct it, for a time, into other 
channels, and thereby refresh and improve it. A mere 
lawyer is a mere jackass, and has never the power to 
unload himself; whereas I consider the advocate — the 
thoroughly accomplished advocate — the highest style 
of man. He is always ready to learn, and always 
able to teach. Hortensius was a lawyer — Cicero an 
orator, the one is forgotten, the other immortalized." 

Shortly after his marriage, Mr. Brown was engaged 
with Mr. Binney, and the elder Mr. Rawle (his pre- 
ceptor,) in the Circuit Court of the United States, in 
the highly important case of Snyder v. Zelin, involving 
the chief part of the estate of the late Governor Sny- 
der. It was an ejectment to recover Zelin's Grove. 
Mr. Bellas, Mr. Kittera, and Mr. Chauncey, were the 
counsel for the defendant. This case is introduced 
partly to show the promptitude of Mr. Brown in 



Iyi biographical memoir. 

an emergency, and partly to exhibit the perils of 
prmting. 

As the junior counsel, Mr. B., of course, opened the 
case for the plaintiiF. When he commenced, the wit- 
nesses to prove the fact of possession, were all in 
court; but when the opening was finished, and the 
witnesses were called, they had all in some mysterious 
manner disappeared. The matter was stated to the 
court, but after waiting a few minutes, Judge "Wash- 
ington ordered the case to proceed. "Well, then," 
said Mr. B., " I will call Mr. Bellas, one of the defend- 
ant's counsel, who resides near Zelin's Grove." "I 
decline being examined," said Mr. Bellas, "being coun- 
sel, I cannot be asked to betray the confidence reposed 
in me." " But," said the Judge, " you are compelled, 
notwithstanding, to state your knowledge of a fact 
which is supposed to have been known to you, inde- 
pendently of your employment." He was therefore 
examined, and the object accomplished. The peril of 
printing was this : 

During the trial just mentioned, which was a pro- 
tracted one, Mr. James Madison Porter (afterwards 
Secretary of War, who was a brother of Judge Porter,) 
had procured the proceedings and arguments upon the 
impeachment, to be pubhshed, and he forwarded the 
proof-sheet to Mr. B., while immersed in the difficulties 
of the trial, in the Circuit Court. Mr. B. had merely 
time hastily to glance over his speech, strike out some 



BIOGRAPHICAL MEMOIR. JyJJ 

of tlie objectionable parts, by passing his pen through 
them, and return the proof forthwith. But upon the 
publication of the book, what was liis surprise to find 
that the stupid printer, instead of omitting the objec- 
tionable passages, probably supposing they were in- 
tended to be underscored, had printed them all in 
italics, thereby inviting attention especially to the 
most offensive parts of the argument. If the speech 
was ruined, the joke at least remained ; and We have 
often heard the victim say, that he would not give 
much for any man's literary or professional reputation^ 
that a printer's blunder could demolish. 

Shortly after this he reviewed, for Mr, Walsh, 
"Joanna Baillie's Poetical and Dramatic Produc- 
tions;" Colonel Hamilton's work upon the "Men and 
Manners of America ;" and Lord Brougham's Speech 
upon the "Reform of the British Laws." In the year 
1830, he wrote " Sertorius, or the Roman Patriot,'" 
a tragedy; and the "Prophet of St. Paul's," a melo- 
drama, which were followed by the " Trial," another 
tragedy; and a farce, called "Love and Honor, or the 
Generous Soldier ;" the first two of which were per- 
formed and published, and, if we remember rightlyy 
reviewed by Mr. Paulding, Secretary of the Navy, in 
"Walsh's American Quarterly Review." Well may 
we admire, says an author of considerable distinction,, 
speaking in regard to these literary labors, that a 
lawyer, overwhelmed with an infinite variety of busi- 

VOL. I. — 5 



Iviii BIOGRAPHICAL MEMOIR. 

ness, whose ante-room resembles that of Charles the 
Bold, should recreate his harassed and exhausted 
faculties, even amidst the passion, invective, and noise 
of litigation, with the beautiful dreams of poetry. He 
well knew that the purest and loftiest intellect is least 
esteemed among us ; else why are the authors of " Pro- 
metheus" and " Hadad" thrown backward into darkness, 
wliile the tamest mediocrity often triumphs over the 
genius wliich scorns all subterfuge and notoriety. But 
Mr. Brown recks not of these tilings. Amidst the 
severe toils and agitations of his profession, he sum- 
mons around him the lovely castalides — breathes in 
the tliick atmosphere of a court, the pure au' of Par- 
nassus ; and retii'es with a serene spirit from the fury 
of forensic contention, to celebrate his competalia 
among the shadowy and beautiful beings of the mind. 
We deHght to behold such a mind ; it soars beyond the 
indurating influences, the scepticism, the worldliness, 
which the law too often engenders, and clothes even 
the bitter animosities of men with the light of a hu- 
manizing and exalted spirit. Mr. Brown most amply 
merits the reputation he enjoys in jurisprudence, and 
if his fame is not surpassed by his hterary renown, it 
will be solely because letters are to him, not a profes- 
sion, but an enjoyment; not an aspiration after immor- 
tality, but a recreation and solace in his hours of 
abstraction from the more severe conflicts of the mind. 
In a work upon the "Dramatic Authors of Ame- 



BIOGRAPHICAL MEMOIR. ]j^ 

rica," by James Reese, Esq., published in 1845, there 
is also a notice of some of these plays, together with 
a professional anecdote, that may not be unworthy of 
insertion in this hasty and imperfect sketch. It is 
written by a comparative stranger, and is, perhaps, 
the more valuable or impartial on that account ; at all 
events, it will form one of the links in the chronologi- 
cal chain of Mr. Brown's career. 

David Paul Broiun, '"'' Sertorms ;' '^'^ Prophet of St. 
PauVs." The first of these was printed in 1830, and 
acted by Mr. Booth, in his palmy days, with great 
success. It possesses considerable merit, and has 
nobly withstood the test of severe criticism. The 
latter has been played thrice, but not with the same 
success. " The Prophet of St. Paul's," like the dra- 
matic productions of Byron, is better calculated for 
the closet than the stage ; it is obviously not mtended 
for representation. A critic of the period alluded to, 
speaks of the author thus : 

" Mr. Brown's poetry is generally smooth and harmonious. Be- 
sides a familiar acquaintance with the best models, he has a delicate 
ear, nicely alive to discord ; and he reads with a correctness which 
would he likely, if applied as a test, to prevent all harshness of 
rhythmical construction. In ' Sertorius,' it would be difficult to find 
a single jarring line. Mr. Brown is one of our most popular law- 
yers. He possesses, in an eminent degree, those qualities which 
acquire and secure favor. His manners are frank and courteous, 
his conversation is sparkling and vivacious, and his temper is amiable 
and benevolent. 



l^ BIOGRAPHICAL MEMOIR. 

" As an advocate, lie has few superiors. He enters thoroughly 
into his case — identifies himself with his client — and his warmth and 
energy always secure attention, and awaken interest, even when they 
fail to produce conviction. His declaination is bold and impas- 
sioned ; his diction uncommonly free and felicitous, and he possesses 
a readiness, self-command and tact, which never forsake him. It is 
not surprising, then, that his clients should be numerous, and his 
business extensive ; and hence it has happened, to use the language 
employed in his simple, but sincere dedication, that his ' dramatic 
sketch' was hastily ' drawn in the scanty intervals afforded by an 
arduous profession.' 

" A general criticism upon the literary merits of any native pro- 
duction, would be foreign from our purpose. In accordance, how- 
ever, with the plan laid down, we give extracts whenever the oppor- 
tunity offers, with such remarks as have appeared on or about the 
time of the representation of the pieces. We wrote to David Paul 
Brown, Esq., for copies of his plays, that we might make such 
extracts as would tend to give our readers some idea of their lite- 
rary merit. We cannot resist the temptation of pubHshing the fol- 
lowing letter from this admirable dramatic writer; it is written in 
his usual style of excellence, and when we add, that we have no 
personal acquaintance with him, his open, candid, and familiar style 
will convey to our readers a much better idea of Mr. Brown's cha- 
racter, than would whole pages of fulsome flattery, from some crawl- 
ino- sycophant, who, 'to win and wear favor,' would write anything 
at the expense of truth. 

'"Philadelphia. 

" 'Dear Sir, — I received your kind letter, dated the first of this 
month, and hasten to reply. I am, perhaps, unlike most dramatic 
writers of the present, or any other, day — for although neither of 
my dramas has met with much success, I think both have met with 



BIOGRAPHICAL MEMOIR. 1x1 

much more than they were entitled to. This impression of mine 
may be aseribable to my utter indifference to their fate. They were 
written rather as matters of relief from the cares and toils of an 
arduous profession, than with any view to their representation upon ' 
the stage. And if I may speak frankly, I must say, they derived 
greater celebrity from their author, than their author will ever derive 
from them. In other words, it was not so remarkable that with vast 
professional engagements, I should have written two bad plays, as 
that I should have been able to write any at all. ' Sertorius' has 
been performed nine times, and with the aid of Mr. Booth, was well 
received. The 'Prophet of St. Paul's' has been thrice performed, 
and by the aid of good luck, has not yet been damned; but for my 
own part, I should be unwilling to run so narrow a chance. In the 
worst possible result however, I should have been totally unaffected, 
as I confess to you; although I have much pleasure in the composition 
of such matters, I have no interest in their fate. I am an advocate, 
not a dramatist. 

" 'I have attended to your request, and deposited with Messrs. 
Carey & Hart, a copy of ' Sertorius' and the ' Prophet,' which I 
hope you wiU shortly receive. 

'' * Very respectfully yours, 

" ^ David Paul Brown.' " 

Anecdote of David Paul Brown : 

" Some fifteen years ago, when the duties of a juror required my 
regular attendance at the courts, the peculiar manner and style of 
this gentleman's pleading struck me as being highly dramatic — not 
an affected, theatrical manner, but one the result of much study of 
human nature, the effect of which was starthng and almost over- 
powering, particularly to the poor devil about undergoing the ordeal 
of cross-examination. One case, while I was an empaneled juror, 



j^j^ BIOGRAPHICAL MEMOIR. 

left an impression on my mind that time can never erase. The wit- 
ness was a respectable looking man, with a calm, settled countenance, 
as placid as are the deep waters when the storms have passed in 
their fury away. There was not in any one of liis strongly marked 
features, the least indication or index to a volume of crimes, which 
lay hid in his breast. I had noticed this man particularly, and in a 
former case, had received as gospel his evidence. But Mr. Brown, 
the attorney in the case before the court, objected to his evidence; it 
should not, he observed, be received. The reasons were demanded 
by the court — they were promptly given : the man was a convict, 
unpardoned, and thus placed beyond the pale and privilege of the 
law by his crimes, and not to be admitted at the bar otherwise than 
as a criminal. Much excitement ensued; the witness looked sur- 
prised ; he rebutted the charge with indignation, spoke of character, 
law and justice — his eyes flashed as he boldly stated to the court 
that he never was in prison, had never been subject to the lash of 
the law in any shape. Injured innocence, insulted pride, wounded 
honor, all seemed to rise up in vengeance against the bold accuser. 
Mr. Brown arose from his chair, where he had seated himself at the 
commencement of the witness's declaration of innocence, and walked 
up to him. There was determination in his look ; his soul-searching 
eye was fixed like that of a basilisk on the witness. The efiect was 
almost the same, for his victim's gaze was also as fixed ; the one, 
however, was that of power — the other that of fear. Mr. Brown 
spoke ; ' I have objected to your evidence, sir ; this objection is 
founded upon a knowledge of your character. Answer me, sir, 
were you not convicted and punished in the State of Delaware, for 
a heinous crime ?' ' No, sir.' This was uttered with an evidently 
assumed boldness. ' Never !' ' No, sir.' ' If I were to strip up the 
sleeves of your coat, and point to the letter K, branded on your 
right arm, near the shoulder, and say this was done in New Castle, 
Delaware, what answer would you make V The poor wretch was 



BIOGRAPHICAL xMEMOIR. J^iii 

crushed — his artificial courage melted away before the fire of an 
intellectual eye. It is scarcely necessary to add, Brown gained his 
cause. From that moment I admired him; and when his tragedy 
of Sertorius made its appearance, I read it with additional interest, 
from the fact of associating a highly intellectual scene in real life, 
with the many which so frequently occur in dramatic existence." 



In addition to the preceding notice, we cannot, per- 
haps, do better than present to our readers the follow- 
ing sketch, by a distmguished member of the B.ir, (still 
in practice,) some few years afterwards. 

Extract from the private journal of a member of the 
Bar, dated September loth, 1836 : 

"A word of Mr. Brown, whose accidental presence in the box 
with me this evening, and devotion to Shakspeare, suggests a remark 
or two in this connection. Some persons, as was once said of him, 
have the good fortune to be called by all their names at once ; it is 
so with this gentleman ; it is never Mr. David Brown, or Mr. Paul 
Brown, or Mr. David P. Brown, or Mr. D. Paul Brown, according 
to a modern fancy, but David Paul Brown, all three at the same 
time — an entire triumvirate — like certain illustrious names of anti- 
quity, or John Quincy Adams, to come down to our own day. But 
with or without all three of his names, he is a remarkable man. He 
stands, in many things, at the head of the profession, in my humble 
judgment, if eloquence be a test of professional streng-th or distinc- 
tion — for eloquence he undoubtedly has, and of a high order. That 
godlike gift, which likens man to angels in its sublimest flights, is 
his, to an extent unsurpassed by any one here in daily practice, 
whom I have yet heard. There may be others equally eloquent, 



J-j^^y BIOGRAPHICAL MEMOIR. 

others who have ceased to mingle in daily contests — I am told there 
are such, whose style of speaking is as classic, as powerful, but I 
have not heard them. Of those whom I have listened to, I should 
say, that the gift of oratory, in some of its highest departments, is 
assuredly Mr. David Paul Brown's, by title indefeasible and beyond 
dispute. I have known him carry a whole court room by storm. 
This may give an idea of his style — it is storming of entrenchments 
with him from beginning to end, a charge of bayonets, downright 
cut and thrust work — the battle axe and battering ram, from the 
moment he rises till he takes his seat. We hear of the sword and 
the pen ; with him it is the sword and the tongue ; his manner of 
speaking resembling often the power of the sword, for he slashes 
about him, right and left, cutting down every thing — sparing nothing 
— galloping headlong over dead and dying, till he accomplishes the 
one great object of beating and prostrating the enemy's lines, bearing 
down his defences, and planting his victorious standard upon the 
ruins, it may be inferred that he is equally powerful to resist; 
evading, with equal dexterity, the blow himself would aim. With 
all this, he has the high merit of self-possession, which he retains at 
aU times, in the midst even of a torrent in which other men would 
be lost. He speaks a good deal like McDuffie, of South Carolina, 
using the same fire and force, and would be a Hercules in the field 
of stump oratory; and yet I would not convey the idea, that his 
style is exclusively of the boisterous, headlong order — on the con- 
trary, the steel is often as polished as the arrow is barbed, and it 
appears to be his aim, and he succeeds in it too, to be distinguished 
not less for the graces, than the power of his oratory. He has a fine 
command of language; and then, you can always hear what he says, 
for he speaks with remarkable distinctness, even in his most animated 
moments, and gives a clear, open sound to every word that he utters. 
"As to ' action, action, action,' his is the action of the mind and 
the soul — the head and the heart — the hands and the feet, at one 



BIOGRAPHICAL MEMOIR. Ixy 

and the same moment of time ; and if his movements are sometimes 
a little too sudden, and if he does sometimes walk about a little too 
much, let those who would criticise, emulate his success, and try to 
do better. He has the art of carrying you along with him fi-om the 
beginning to the end of the chapter, retaining his hold all the time. 
Hence, he never fatigues ; and this is one secret of his success, I 
must not omit to speak of his uniform courtesy to his opponents, and 
constant equanimity of temper; virtues in which younger men, and 
some who are not younger, would do well to imitate him. He has 
certainly the art of making the most of his case, and the worst of 
his adversary's. He is playfal as well as sarcastic, but I never 
heard him indulge in low or coarse jokes. On questions of evidence 
he has great power, and when taken suddenly in the midst of a 
cause on exceptions started, I have known him argue them with 
extraordinary ability and force. I heard a distinguished lawyer, 
himself an accomplished speaker, who is still occasionally to be seen 
in court, commend him highly on this head. In the examination of 
witnesses, his skill and power have elicited praise from tongues and 
pens, abler than mine, and I pass by that great field of his success. 
" I am not aware of objections to his style — it may be that he is 
sometimes over zealous, and that a little more variety would enhance 
the effect of his speeches. The first is, at least, that which leans to 
the side of excellence in oratory, and belongs to genius, and in his 
case, is connected with, and arises from a quality the noblest of any 
that an advocate can possess, and which this gentleman eminently 
possesses, the ' sacred duty' which Brougham so eloquently described 
and enforced, and which needs only to be named, to meet a ready 
response in the heart of every member of the profession who rightly 
appreciates his high calling — the sacred duty he owes his client. In 
this respect, Mr. Brown is entitled to the highest praise, for he goes 
for his client through and through — his client first, his chent last, 
his client always. 



Ixvi BIOGRAPHICAL MEMOIR. 

"A word of his industry; and if this rambling sketch has already 
extended itself to greater length than I had at first contemplated, it 
is at least a reason that I should not leave it incomplete. With 
every just admiration for the qualities of learning and high profes- 
sional attainments, united with personal accomplishments, which I 
have witnessed at this bar, I have been disappointed in the style of 
speaking. Hence, I have dwelt the rather upon one who seems to 
have made the eloquence of the bar his ambition. But his industry 
is equally the subject of praise. His practice is very large — involving, 
of course, daily and hourly occupation at the bar, and with his 
clients early and late, yet he gets through it all, without ever 
appearing to be discomposed, or even seeming to be in a hurry. His 
success speaks for itself. You meet him everywhere, almost at the 
same moment, making speeches, I had almost said every day in 
every court; yet he is perpetually at work at something else; writing 
addresses for the 'Artist Fund Society' — delivering orations before 
the 'Phi Beta Kappa Society,' or lectures upon 'Hamlet,' or writing 
plays or essays upon all svibjeets, besides being prominent at many 
a convivial party. The only way for accounting for it all is, by 
referring it to great and unceasing industry, and I am told that his 
is very great. And after all, how can men hope to succeed in any 
thing without it ? ' The mind of man is a mine of labor.' So said 
a distinguished gentleman in my hearing not long ago — distinguished 
for high professional reputation not less than social eminence. One 
of the commentators on the Old Testament remarks, on the first 
chapter of Genesis, that ' to man, moreover, it is enjoined to subdue 
the earth ; to subject it to his own and his posterity's dominion by 
due labor and industry, so that it is plain, man, even in his perfect 
state, was designed for industry and toil.' Let us profit by the 
precept." 

The habits of Mr. B. are most abstemious, and he 
has often been heard to say, that he never dined 



BIOGRAPHICAL MEMOIR. l^Y^ 

when he expected to speak in the afternoon, upon any 
case of importance, as the dinner woukl cost him more 
mental effort than it was worth, and contribute to lose 
the cause besides. In no circumstance, however, does 
he ever omit his breakfast — it is his great meal, and 
sometimes the only one for the entKe day. Few men 
of the age of forty have his activity and elasticity of 
body; and since his boyhood he has never been known 
to be sick except upon one occasion. Before he was 
twenty-five years of age, water was his only drink, 
and he rarely retired to bed after t^n o'clock. To this 
he imputes his entire freedom from aches, and pains, 
and disease of every sort. His mind is as sound as 
his body — never depressed, never unduly excited, pre- 
serving always a cheerful and an unbroken equanimity, 
and exhibiting none of the effects of care, of tmie, or 
of study. In colloquial intercourse he has no supe- 
riors — gay and sparkling, or grave and meditative, as 
occasion may require. He can adapt himself to all 
conditions of life — kind to all, neither overbearing nor 
obsequious ; a friend to the poor, and no foe to the 
rich — considermg himself on a level with the loftiest, 
and not above the level of the humblest; without 
courting the favor of either, he seems to enjoy the 
sympathies and friendship of both. With no political 
attachments or antipathies, while he has always been a 
federalist, in social intercouse he harmonizes entirely 
with the democracy of the country, and makes no 



Ixviii BIOGRAPHICAL MEMOIR. 

distinction between, the UacJc^ and red and Hue 
cockade. 

In speaking, as has been said, he uses considerable 
gestures, but his action is suited to the thought. He 
changes his position frequently, moves backwards and 
forwards — appeals to court, jury, counsel, and some- 
times even to the general audience. His pathos melts 
and subdues, liis mvective startles and dismays every 
one. The full master of the choicest and the most 
powerful and abundant language, he is never at a loss 
for the best words in their best places; and with a 
voice that, for compass and sweetness, has no equal in 
the United States, he seems to sport rather than to 
labor, even in the severest professional efforts. He 
speaks without notes, or any apparent preparation — 
relies entirely upon his memory for the evidence of a 
case, however long or complicated — reads few books 
during an argument — cites principles rather than cases 
— seldom speaks more than two hours in any case, 
and runs through his time and his task so smoothly, 
that you wonder, when you are told he has spoken so 
long. 

His examination of w^itnesses is as remarkable in 
its line as his speeches, and perhaps manifests, even 
superior mental powers ; it is perfectly sxd generis. 
His eye is never removed from the witness — he rarely 
takes a note ; he puts his question so plainly, and so 
duectly, as to admit of no equivocation, and never 



BIOGRAPHICAL MEMOIR. J^ix 

leaves it till lie gets an answer. With the mild, he is 
always mild ; with the timid, forbearing ; shrewd with 
the crafty, and resolute with the refractory. Whether 
it is liis great fame, or his innate power, as a cross- 
examiner, it is hard to say; but it is certain that from 
the moment he takes up the witness, he never lets him 
go till he exhausts him, or wields a power over him 
that astonishes every one, and none more than the 
witness himself. An examination of a witness is 
generally a dry matter with the multitude — not so in 
his case ; every eye and every mind are fixed upon it, 
with the most intense interest and anxiety; and it is 
sometimes left in doubt whether his triumphs are most 
to be attributed to the fervor, and brilliancy, and 
beauty of his elocution, or the quickness, acuteness, 
and power of his examination of witnesses. 

In his literature, his mode of composition is some- 
Avhat borrowed from his forensic habits. It is pecu- 
liar — he never writes himself, but leaves it to his 
amanuensis, while he walks the room, and sometimes 
dictates an entire lecture in a single night, without 
finding it necessary to correct a point or a syllable. 
He never pauses for, or alters a word. This feature, 
as has been said, imparts naturally to his written pro- 
ductions somewhat of the character of his speeches ; 
it takes from their simplicity and smoothness, but adds 
largely to their boldness and vigor. It need scarcely 
be said, that he composes or w^rites with great ease. 



2-j^-^ BIOGRAPHICAL MEMOIR. 

" Sertorius" was written in two weeks, and the " Pro- 
phet of St. Paul's" in less than a month, and that, too, 
in the midst of heavy professional engagements. One 
circumstance connected with the former play, deserves 
to be mentioned. At the time when it was written, 
Mr. Brown's little family were spending the summer 
at a w^atering place, some thirty miles from Pliiladel- 
phia. He had occasion, from being employed in the 
Aspden case, to be daily in Philadelphia. He left the 
city every evening at dusk, on horseback, and arrived 
at his journey's end about midnight. To beguile Ms 
night's ride of its dreariness, and thus shorten his jour- 
ney, he employed himself in composing the play, and im- 
pressing it upon his memory, and upon his arrival at 
the Yellow Springs, he committed the result of his 
agreeable labor to paper. Such was the origin of 
" Sertorius." Upon one occasion a gentleman having 
said to him that his play contained some very rough 
lines. "There is no doubt of it," said the author; 
"they were concocted, I suppose, while I rode Mr. 
Sergeant's horse, which was an exceedingly hard trot- 
ter, and frequently blundered a little, and unlike Pe- 
gasus, was certainly no favorite of the muses. Tliis 
composing upon all fours is sometimes expedient, but 
seldom very agreeable or profitable." 

The prologues to both the plays referred to, were 
written by the Hon. Joseph R. Ingersoll, (to whom 
one of them was inscribed,) a highly accomplished 



BIOGRAPHICAL MEMOIR. Jxxi 

scholar — a gentleman of the most refined literary 
taste, and one of the soundest lawyers and most bril- 
liant advocates at the bar. And here, in passing, we 
may be permitted to mention to the credit of both 
these gentlemen, that although during a quarter of a 
century, they were frequently engaged with or against 
each other in cases of great popular interests and 
acrimony, they never, during their joint professional 
career, had the slightest personal difference or dis- 
pleasure. 

In 1832, he was engaged in the celebrated case of 
Mrs. Chapman, charged with the murder of her hus- 
band, which lasted two weeks, and resulted in the 
acquittal of the defendant. And on the 22nd of Feb- 
ruary of the next year, he delivered the Address before 
the city authorities and a vast assemblage in the Wash- 
ington square, upon the occasion of laying the corner- 
stone for the monument to be erected to the memory 
of the Father of his country. This speech was pre- 
pared upon twenty-four hours notice, and occupied 
nearly two hours in the delivery — of its merits, as it 
has been pubhshed, nothing further need be said. 

In the year 1836, he lost his legal preceptor, the 
venerable Rawle — and by appointment of the Penn- 
sylvania Abolition Society, (of which the deceased had 
been president,) delivered an eulogy upon liis memory 
and his virtues. This production, whatever may be its 
defects, at least manifests great affection and reverence. 



Ixxn BIOGRAPHICAL MEMOIR. 

The disppsition and deportment of Mr. Brown, at 
the bar, are perhaps best summed up ui the last of his 
" Golden Rules" for lawyers : " Be respectful to the 
court and jury, kmd to your colleague, civil to your 
antagonist, but never sacrifice the slightest principle 
of duty to an overweening deference towards either." 

One of the most marked features in Mr. B.'s profes- 
sional life, is his tender regard for his younger brethren 
at the bar. Their interests and concerns are his. Is 
a colleague requii^ed — he always recommends a young 
man, though it sometimes adds to, instead of diminish- 
ing, his labor. Are his young friends in difficulty — he 
is their advocate. Are their privileges invaded — ^he is 
their defender. Having known the difficulties of rising 
in the profession, he waits not to be solicited, but freely 
and promptly takes youthftd and struggling merit by 
the hand, and makes its cause his own. He never 
withholds either advice or assistance, whatever may be 
the sacrifice. And there are scores of men, at the 
Philadelphia bar, who can date their rise from an asso- 
ciation or connection with the subject of this memoir. 

The consequence of this libesal, sympathetic, and 
disinterested course, may be readily conceived. Mr. 
Brown at court, is in the heart of his own professional 
family — treating every one with kmdness, and receiv- 
ing kindness from every one in return. He takes 
advantage of no man, and no man takes advantage of 
him — his life is happy, and he reflects the happmess, 



BIOGRAPHICAL MEMOIR. IxXlii 

that he derives from those by whom he is surromided. 
Why, then, in contemplating these multiplied enjoy- 
ments, should discontented cavillers talk of the aspe- 
rities and dissensions of the bar? 

The man who is first to make that discovery will 
find the cause in himself. 

As one of the practical manifestations of regard for 
the advancement of his young friends, at the request 
of some of the most distinguished among them, in the 
year 1835, he threw together liis twenty "Golden 
Rules" for the examination of witnesses, which, as 
they have been through three editions, and are now in 
demand through the whole of the United States, and 
as they convey clear indications of the character of 
the author, we take leave to present in this connection. 



FOR THE EXAMINATION OF WITNESSES. 

" There is often more eloquence, more mind, more 
knowledge of human nature displayed in the examina- 
tion of witnesses, than in the discussion of the cause 
to wdiich their testimony relates. Evidence without 
argument, is worth much more than argumeait without 
evidence. In their union, they are irresistible ! 

" The trial of a cause may be aptly compared to the 

VOL. I. — 6 



Ixxiv BIOGRAPHICAL MEMOIR. 

progress of a painting. You first lay your ground-work ; 
then sketch your various figures ; and finally, by tjae 
power and coloring of argument, separate or gr^up 
them together, with all the advantages of light and 
shade. But if the ground-work be imperfect, or the 
delineations indistinct, your labor will frequently com- 
mence where it ought to conclude — and even after all, 
will prove unsatisfactory, if not contemptible ; or per- 
haps it may more justly be likened to a comphcated 
piece of music, wherein a single false note may destroy 
the entire harmony of the performance. 

^^ First. — As to your own witnesses: If they are 
bold, and may injure your cause by pertness or for- 
wardness, observe a gravity and ceremony of manner 
towards them, wliich may be calculated to repress 
their assurance. 

^^ Second.- — If they are alarmed or diffident, and 
their thoughts are evidently scattered, commence your 
examination with matters of a familiar character, 
remotely connected with the subject of theu' alarm, or 
the matter in issue, as, for instance, Where do you 
live ? Do you know the parties ? How long have 
you known them ? &c. And when you have restored 
them to composure, and the mind has regained its 
equilibrium, proceed to the more essential features of 
the case, being careful to be mild and distinct in your 
approaches, lest you may trouble the fountain again 
from which you are to drink. 



BIOGRAPHICAL MEMOIR. IxXV 

" Third. — If the evidence of your own witnesses 
be unfavorable to you, (which should always be care- 
fully guarded against,) exhibit no want of composure ; 
for there are many minds that form opinions of the 
nature or character of testimony, chiefly from the 
effect wdiich it may appear to produce upon the 
counsel. 

^^ Fourth. — If you perceive that the mind of the 
witness is imbued with prejudices against your chent, 
hope but little from such a quarter — unless there be 
some facts which are essential to your client's protec- 
tion, and which that witness alone can prove, either do 
not call him, or get rid of him as soon as possible. If 
the opposite counsel perceive the bias to w^hich I have 
referred, he may employ it to your own ruin. In judi- 
cial inquuies, of all possible evils, the worst, and the 
least to be resisted, is an enemy in the disguise of a 
friend. You cannot impeach him — you cannot cross- 
examine him — you cannot disarm him — you cannot, 
indirectly even, assail him ; and if you exercise the 
only privilege that is left to you, and call other wit- 
nesses for the purpose of explanation, you must bear 
in mind, that instead of carrying the war into the 
enemy's country, the struggle is betAveen sections of 
your own forces, and in the very heart, perhaps, of 
your own camp. Avoid this by all means. 

'"'Fifth. — Never call a witness whom your adversar^^ 
will be compelled to call. This will afford you the 



Ixxvi BIOGRAPHICAL MEMOIR. 

privilege of cross-examination, take from your oppo- 
nent the same privilege it thus gives you, and, in addi- 
tion thereto, not only render everything unfavorable 
said by the witness, doubly operative against the party 
calling him, but also deprive that party of the power 
of counteracting the effect of the testimony. 

'^ Sixth. — Never ask a question without an object — 
nor without being able to comiect that object with the 
case, if objected to as irrelative. 

^'^ Seventh. — Be careful not to put your question in 
such a shape that, if opposed for informality, you can- 
not sustain it, or, at all events, produce strong reason 
in its support. Frequent failures in the discussion of 
points of evidence, enfeeble your strength in the esti- 
mation of the jury, and greatly impair your hopes in 
the final result. 

^^ Eighth. — Never object to a question from your 
adversary, without being able and disposed to enforce 
the objection. Nothing is so monstrous as to be con- 
stantly making and withdrawmg objections — it either 
indicates a want of correct perception in making them, 
or a deficiency of reason, or of moral courage, in not 
making them good. 

'''Ninth. — Speak to your witness clearly and dis- 
tinctly, as if you were awake, and engaged in a matter 
of interest; and make him also speak distinctly and to 
your question. How can it be supposed that the court 
and jury will be inclined to listen, when the only strug- 



BIOGRAPHICAL MEMOIR. Ixxvii 

gle seems to be — whether the counsel or the witness 
shall first go to sleep ? 

" Tenth. — Modulate your voice as circumstances may 
dii'ect. 

" Inspire the fearful, and repress the bold." 

''^Eleventh. — Never begin before you are ready — 
and always finish when you have done. In other 
words, do not question for question's sake — but for an 
answer. 

CROSS-EXAMINATION. 

^^ First. — Except in indifferent matters, never take 
your eye from that of the witness. This is a channel 
of communication, from mind to mind, the loss of 
which nothing can compensate. 

"Truth, falsehood, hatred, anger, scorn, despair, 
And all the passions — all the soul is there." 

^'^ Second. — Be not regardless, either, of the voice of 
the witness ; next to the eye, this is perhaps the best 
interpreter of his mind. The very design to screen con- 
science from crime, the mental reservation of the witness, 
is often manifested in the tone or accent, or emphasis 
of the voice. For instance, it becoming important to 
know that the witness was at the corner of Sixth and 
Chestnut streets at a certain time, the question is 
asked — were you at the corner of Sixth and Chestnut 



Ixxviii BIOGRAPHICAL MEMOIR. 

streets at six o'clock ? A frank witness would answer, 
perhaps, "I was near there." But a witness who is 
desirous to conceal the fact, and defeat your object, 
(speakmg to the letter rather than to the spuit of the 
inquiry,) answers — no; although he may have been 
within a stone's throw of the place, or at the very 
place, within ten minutes of the time. The common 
answer of such a witness would be — I was not at the 
corner at dx o'clock. Emphasis upon both words 
plainly imphes a mental evasion or equivocation, and 
gives rise, with a skilful examiner, to the question, At 
what hour w^ere you at the corner? or at what place 
were you at six o'clock ? And in nine mstances out 
of ten, it will appear that the witness was at the place 
about the time, or at the time about the place. There 
is no scope for further illustrations ; but be watchful, 
I say, of the voice, and the principle may be easily 
applied. 

'" Third. — Be mild with the mild — shrewd with the 
crafty — confiding with the honest — merciful to the 
young, the frail, or the fearful — rough to the ruf&an, 
and a thunderbolt to the har. But in all this, never 
be unmindful of your own dignity. Brmg to bear all 
the powers of your mind, not that you may shine, but 
that virtue may triumph, and your cause may prosper. 

'^^ Fourth. — In a crimmal, especially in a capital case, 
so long as your cause stands well, ask but few ques- 
tions, and be certain never to ask any, the answer to 



BIOGRAPHICAL MEMOIR. IxXlX 

which (if against you,) may destroy your client, unless 
you know the witness perfectly well, and know that 
his answer will be favorable equally well ; or unless 
you be prepared with testimony to destroy him, if he 
play traitor to the truth and your expectations. 

'■'•Fifth. — An equivocal question is almost as much 
to be avoided and condemned, as an equivocal answer. 
Singleness of purpose, clearly expressed, is the best 
trait in the examination of witnesses — whether they 
be honest or the reverse. Falsehood is not detected 
by cunning, but by the light of truth, or if by cun- 
ning, it is the cunning of the witness and not of the 
counsel. 

"" Sixtli. — If the witness determine to be witty or 
refractory with you, you had better settle that account 
with him at first, or its items will increase with the 
examination. Let him have an opportunity of satis- 
fying himself, either that he has mistaken your power, 
or his own. But, in any result, be careful that you 
do not lose your temper. Anger is always, either the 
precursor or evidence of assured defeat in any intel- 
lectual conflict. 

'^'^ Seventh. — Like a skilful chess-player, in every 
move fix your mind upon the combinations and rela- 
tions of the game — partial and temporary success may 
otherwise end in total and remediless defeat. 

'^^ Eighth. — Never undervalue jowa adversary; but 
stand steadily upon your guard. A random blow may 



IXXX BIOGRAPHICAL MEMOIR. 

be just as fatal, as though it were cUrected by the 
most consummate skill — the negligence of one often 
cures, and sometimes renders effective, the blunders of 
another. 

^'^ Ninth. — Be respectful to the court and the jury — 
kind to your colleague — civil to your antagonist — but 
never sacrifice the slightest principle of duty to an 
overweening deference towards either." 



In the year 1850, actuated by the same philanthro- 
pic spirit that induced his " Golden Rules," Mr. Brown 
prepared what he calls "Capital Hints for Capital 
Cases," mainly intended for the instruction of his sons, 
just then admitted to the bar, but also designed for the 
benefit of all those whose attention might be dh-ected 
to the higher order of criminal practice. As these in- 
structions are brief, and the edition has been exhausted, 
they are also presented to the reader and to the pro- 
fession. 



AwH m Sajiiliil ^\\%n. 



INSTRUCTIOX FROM A FATHER TO HIS SOXS. 

I. " Firmness and decision are as necessary as know- 
ledge and talents; the heart can do almost as well 
without the head as the head without the heai't. 



BIOGRAPHICAL MEMOIR. Ixxxi 

There can be no cold-blooded defence. An appropri- 
ate and becoming manner is scarcely less necessary, 
than appropriate and becoming matter. A judicious 
and clear development of the facts of a case, is as im- 
]3ortant as the ablest and most eloquent argument. In 
a doubtful case, a skilful examination alone may secure 
a verdict ; but the best argument, without such an 
examination, will generally result in a failure. An 
artist cannot paint without his colors ; and the facts 
derived from the testimony, are the colors or materials 
for the speech. 

II. " There is what may be called an argumentative 
cross-examination, which exhibits to the jury the rea- 
soning of the counsel, in immediate direct connection 
with the testimony of the witnesses. For instance, 
suppose the following cross-examination of a witness : 

" Have you had any dispute or difference with the 
defendant ? — No. Have you been upon friendly terms 
with him for many years ? — Yes. Have you been 
under obligations to him? — ^Yes. Well, then, having 
had no difference, but being for a long time upon 
friendly terms, and being also under obligation and 
bound in gratitude to him, how did it happen that you 
were so vigilant and active in your efforts for his 
detection and conviction ? 

"An examination of this character can scarcely fail 
justly to produce most unfavorable impressions of the 
witness. 



Ixxxii BIOGRAPHICAL MEMOIR. 

III. "Again, it is sometimes judicious to compel liim 
to exhibit his own unworthiness of belief, by bringing 
before him direct and unequivocal contradictions in his 
testimony, and then asking him to explain and recon- 
cile them if he can. I have seen a witness struck 
dumb by this mode of cross-examination; and in 
many cases it is much better thus to present it, 
than to reserve the contradiction for after discus- 
sion; — it is fresher, fairer, more candid, and more 
efficient. 

IV. " Before you venture upon the trial of a capital 
case, be well assured in your own mind, that you are com- 
petent for the hazardous duty you are about to assume. 
Remember the blood of the defendant may be upon 
you, if your task be feebly performed; and do not, 
therefore, allow a feverish desire for premature noto- 
riety — in a case of great popular excitement — to blind 
you to the difficulties and dangers by which joii will 
inevitably be surrounded. The trtiijipet of fame can- 
not drown the small still voice of remorse. 

y. " Being well assured that you are able, m point 
of intellect and knowledge, be equally well convinced 
that your feehngs are deeply enlisted for the hapless 
being you are called upon to defend, and that these 
feelings, instead of impairing your efforts, will contri- 
bute to strengthen and enforce them. You should feel 
as though you were defending yourself, wliich you will 
naturally do, by constantly holding in view the life of 



BIOGRAPHICAL MEMOIR. Ixxxiii 

the prisoner, the gibbet, and his forlorn and heart- 
stricken survivors. 

VI. "You must know no fear but that of failure ; and 
even that, you must permit nobody else to discover 
through you. Waive no right that you possess that 
may affect the defendant — yield tribute to no autho- 
rity that is illegitimately exerted to his injury — recol- 
lect, you guard the citadel of human life — be wary, and 
be firm. The judge and the jury, it is true, may take 
the life of the prisoner, but you are not to give it away. 
They must reach it over your own prostrate body. 

VII. " In all you think, and say, and do, remember 
your strength is nothing ; there is but one arm that is 
powerful to save, and in relying upon that arm you derive 
a support, the mere consciousness of which is both a 
sword and shield in the hour of extremest peril. You 
may not acquit the guilty; nay, you may not acc^uit 
the innocent ; but you will, at least, by a firm, faithful, 
and fearless discharge of your duty, acquit yourself. I 
have said, that manner is scarcely less necessary than 
matter; indeed, rightly considered, it is matter. 

VIII. " You must enter upon the trial of a capital case, 
as a physician should enter the death-bed scene — calmly, 
gravely, solemnly — all eyes are upon you — all hopes 
are upon you — all fears are upon you. There is no 
time for flippancy, agitation, or irresolution — much 
less, for smiles or merriment ; sport would as weU 
become a charnel-house. 



Ixxxiv BIOGRAPHICAL MEMOIR. 

IX. " Stand by the prisoner while he makes his chal- 
lenges ; advise with him — comfort him and sustain 
him. When you repeat his challenges^ do it in a mild 
and inoffensive way, lest you may create enemies, 
while your chief object is to secure friends. If you 
ever challenge for cause, and the challenge fail, be cer- 
tain that you have not exhausted your right to a 
peremptory challenge, and invariably exercise it. 
Never challenge the twelfth juror, unless you are rea- 
sonably certain that he who may be called in his place, 
will be more favorable to the prisoner. 

X. " The jury being complete, dehberately proceed to 
the trial of the cause. I say deliberately — no hurry — 
no confusion — no gossip — no levity — no divided atten- 
tion ; note everything with the ' very comment of your 
soul ;' and while you look at aU, bear in mind, the pri- 
soner and all connected with him, look at you. If 
prosecuting witnesses do not affect your defence, don't 
cross-examine them at all, unless you are certain they 
can, and tvill, prove something affirmatively for the 
defence. In trying a case, if the character of the 
defendant be strong and his facts weak, introduce 
character first. If his facts be strong and liis character 
w^eak, either introduce character at the last, or not at 
all. Never despair — I have known the best case in 
the beginning to prove the worst in the end ; and the 
worst at first, to be the best at last. 

XI. " If the unliappy man have a family, much as it 



BIOGRAPHICAL MEMOIR. IxXXV 

may cost, the family should be present in the hour of 
his extremest need. He will suffer more, and they will 
suffer more, by their absence. Their presence gives a 
proper tone and complexion to the awful scene. It is 
w^orth a thousand fancy sketches of domestic, parental, 
conjugal, or fihal agony. When the verdict shall be 
returned, take your post by the prisoner, calm, col- 
lected, prepared for, and equal to, either fortune. 

XII. " If your efforts should be crowned with success, 
be grateful to that power which controls all things, but 
exhibit no vain spirit of triumph. If the defendant be 
convicted, nerve yourself to receive and bear the blow, 
and still do not despair; much yet remains to be done. 
After a verdict of guilty, if you doubt the sufficiency 
of the evidence or charge of the court, or the decision 
of the judge upon the points of law, or fairness of the 
jury, move for a new trial ; if none of these grounds 
exist, or if you should urge them unsuccessfully, enter 
a motion in arrest of judgment, provided there is any 
actual or supposed error upon the face of the record. 

XIII. " If this effort should also fail, the next awful 
step will be the judgment. Here, too, you must be pre- 
sent, and when the judge inquires of the prisoner, 
what he has to say why sentence of death should not 
be pronounced against him? if there be any such 
reason, be careful that it be suppHed. 

XIV. " The sentence having been passed, the death 
warrant issues — your application for a pardon has been 



IxXXvi BIOGRAPHICAL MEMOIR. 

refused, the drop falls — and then, and not till then, 
your duties are done. 

" To conclude : — the condition of an advocate for a 
defendant, in a capital case, may be aptly compared to 
that of a commander of a ship m a storm ; the cordage 
snaps, the masts go by the board, the bulwarks are 
carried away, the hull springs a leak — every depend- 
ence from time to time fails, and ruin appears to be 
inevitable ; but still, amidst the ' wreck of matter,' 
sustained by the immortal mind, with a resolved will, 
the gallant commander stands by Ms helm to the last, 
determined either to steer his shattered vessel into 
port, or to perish gloriously in the faithful discharge of 
liis duty." 



At the April Sessions of the Ch'cuit Court of the 
United States, a case of absorbing and terrific interest 
was brought to trial — it was a prosecution against 
William Holmes, for the murder of Francis Askin, and 
arose out of the following" circumstances : The Ameri- 
can ship, William Brown, left Liverpool on the loth of 
March, 1841, bound for Philadelpliia. She had on 
board seventeen of a crew, and sixty-four passengers, 
Scotch and Irish emigrants. 

About ten o'clock of the night of the 19th of April, 
when distant two hundred and fifty miles south-east of 
Cape Race, the vessel struck an iceberg and filled so 
rapidly, that it was evident she must soon go down. 



BIOGRAPHICAL MEMOIR. IxXXvii 

The long-boat and jolly-boat were lowered ; the cajj- 
tain, second mate, seven of the crew, and one passen- 
ger, got mto the jolly-boat; the first mate, eight 
seamen, of whom the prisoner was one, and thirty-two 
passengers, got indiscriminately into the long-boat; the 
remaining thirty-one passengers were obliged to remain 
on board the ship. In an hour from the time when 
the ship struck she went down, carrying with her 
every person, who had not escaped to one or other of 
the boats. On the following morning, the captain, in 
parting company with the long-boat, gave its crew 
directions to obey all the orders of the mate, as they 
would obey his, (the captain's,) which they promised 
should be done. The long-boat, however, leaked, and 
all on board were in great jeopardy. The gunwale 
was within from five to twelve inches of the water, 
and was supposed to be too untnanageable to be saved ; 
in a moderate blow she would have been swamped 
very quickly. The people were all crowded together 
like sheep ui a pen, and the least u-regularity in the 
stowage would have capsized the boat ; and as was 
sworn, if she had struck any piece of ice, she would 
have inevitably gone down ; at the best, her chances 
of living were much against her. Notwithstanding all 
this, she did survive until ten o'clock on Thursday 
night, the crew rowing by turns, and the passengers 
baihng. On Tuesday morning it began to rain, and 
continued till nidit ; at night the wind freshened, the 



Ixxxviii BIOGRAPHICAL MEMOIR. 

sea grew heavier, and splashed over the boat's bow; 
pieces of ice still floated around, and during the day 
icebergs had been seen. At length the mate exclaimed, 
" Help me, God ! men, you must go to work, or we 
shall all perish !" About ten o'clock on Tuesdaj^, the 
prisoner and the rest of the crew began to throw over 
some of the passengers, and did not cease until they 
had thrown over fourteen male passengers : among 
them was Askin, to whom this indictment related. 
Holmes was one of the persons who assisted in throw- 
ing the passengers over. He was a Finn by birth, 
had followed the sea from youth, and his frame and 
countenance were models of decision and strength. 
He had been the last man of the crew to leave the 
sinking ship ; his efforts to save the passengers at the 
time the ship struck, had been conspicuous, self-forget- 
ful, and most generous. He was a most skilful and 
obedient sailor, kind and obliging in every respect to 
the passengers and crew; he finally became the only 
one whose energies and hopes were not prostrated; 
and it was through his means that the remnant of the 
crew and passengers were saved. The case was con- 
ducted for the United States by Mr. Meredith, Mr. 
Dallas, and Mr. Hopkinson; the defence, by David 
Paul Brown, Mr. Hazlehurst and Mr. Armstrong. Our 
space does not allow us to go into the minutiae of the 
case, or a detailed account of the argument of the 
counsel. The trial was one of great excitement, and 



BIOGRAPHICAL MEMOIR. Ixxxix 

the court room was crowded for near a week with 
much of the beauty, fashion, and intelligence of the 
city. We have given the general outline, as introduc- 
tory to an extract from the speech of Mr. Brown in 
liis defence, chiefly drawn from Wallace's Reports of 
the Circuit Court of the United States : 

* * * " This case should be tried in a long-boat, sunk down to 
its very gunwale, with forty-one half-naked, starved, and shivering 
wretches ; the boat leaking from below — filling from above ; a hun- 
dred leagues from land ; at midnight ; suiTounded by ice ; unman- 
ageable from its load, and subject to certain destruction from a 
change of the most chang-eable of the elements — the winds and the 
waves. To these, superadd the horrors of famine, and the reckless- 
ness of despair, madness, and all the prospects, past utterance, of 
this unutterable condition. Fairly to sit in judgment on the pri- 
soner, we should, then, be actually translated to his situation. It 
was a conjuncture which no fancy can image. Terror had assumed 
the throne of reason, and passion had become judgment. Are the 
United States to come here now, a year after the events, when it is 
impossible to estimate the elements which combined to make the 
risk, or to say to what extent the jeopardy was imminent — are they, 
with square, rule and compass, dehberately to measure this boat, in 
this room J to weigh these passengers; call in philosophers; discuss 
specific gravities ; calculate by the tables of a life-insurance com- 
pany the chances of life ; and because they, these judges, find that, 
by their calculation, this unfortunate boat's crew might have had the 
thousandth part of one poor chance to escape, to condemn this pri- 
soner to chains and a dungeon, for what he did in the terror and 
darkness of that dark and terrible night? Such a mode of testing 
men's acts and motives, is monstrous ! 
VOL. I. — 7 



^Q BIOGRAPHICAL MEMOIR. 

"We contend, therefore, that what is honestly and reasonahly 
believed to he certain death, will justify self-defence in the degree 
requisite for excuse. According to Dr. Rutherford, (Inst, of Nat. 
Law, book I, chap. 16,) 'this law' — i. e., the law of nature — 'can- 
not be supposed to oblige a man to expose his life to such dangers as 
may be guarded against, and to wait till the danger is just coming 
upon him, before it allows him to secure himself.' In other words, 
he need not wait till the certainty of the danger has been proved, 
past doubt, by its result. Yet this is the doctrine of the prosecu- 
tion. They ask us to wait until the boat has sunk ; we may then 
make an effort to prevent her from sinking. They tell us to wait 
till all are drowned ; we may then make endeavors to save a part. 
They command us to stand still till we are all lost, past possibihty 
of redemption, and then we may rescue as many as can be saved ! 
'Where the danger is instantaneous, the mind is too much disturbed,' 
says Rutherford, in a passage heretofore cited, ' to dehberate upon 
the method of providing for one's own safety, with the least hurt to 
an aggressor.' The same author then proceeds : ' I see not, there- 
fore, any want of benevolence, which can be reasonably charged 
upon a man in these circumstances, if he takes the most obvious way 
of preserving himself, though perhaps, some other method might 
have been found, and which would have preserved him as effectu- 
ally, and have produced less hurt to the aggressor, if he had been 
calm enough, and had been allowed time enough to dehberate about 
it;' (Rutherford, Inst, of Nat. Law, book I., chapters 16, § 5.) Nor 
is this the language of approved text-writers alone. The doctrine 
has ^the solemnity of judicial establishment. In Grainger v. The 
State, (5th Yerger's Rep. p. 459,) the Supreme Court of Tennessee 
deliberately adjudge, that ' if a man, though in no great danger of 
serious bodily harm, through fear, alarm, or cowardice, kill another, 
under the impression that great bodily injury is about to be inflicted 
on him, it is neither manslaughter nor murder, but self-defence.' 'It 



BIOGRAPHICAL MEMOIR. Xci 

is a different thing,' say the Supreme Court of the United States, in 
the Mariana Flora, 'to sit in judgment upon the case, after full legal 
investigations, aided by the regular evidence of all parties, and to 
draw conclusions at sea, with very imperfect means of ascertaining 
facts and principles, which ought to direct the judgment;' (11th 
Wheaton's Rep., p. 51.) The decision in the case just cited, carried 
out this principle into practice ; as the case of Le Louis, decided by 
Sir WiUiam Scott, had done before, (2nd Dodson's Admiralty Rep., 
p. 264.) 

" The counsel cited Lord Bacon, likewise, (works by Montague, 
vol. 13th, p. 160: London, 1831 ;) and 4th Blackstone's Com., p, 
1 60. But the prospect of sinking was not imaginary ; it was well 
founded. It is not to be supposed that Holmes, who, from infancy, 
had been a child of the ocean, was causelessly alarmed ; and there 
being no pretence of animosity, but the contrary, we must infer that 
the peril was extreme. As regards the two men cast over on AYed- 
nesday, the presumption is, that they were either frozen or freezing 
to death. There being at this time no prospect of relief, the act is 
deprived of its barbarity. The evidence is, that the two men were 
' very stiff with cold.' 

" Besides, this indictment is in regard to Askin alone. There is 
no evidence of inhumanity on Tuesday night, when this throwing 
over began ; though it is possible enough, that having proceeded so 
far in the work of horror, the feehngs of the crew became at last so 
disordered, as to become unnatural. [The learned counsel then 
examined the evidence, in order to show the extremity of the 
danger.] 

" Counsel say that lots are the law of the ocean. Lots in cases 
of famine, where means of subsistence are wanting for all the crew, 
is what the history of maritime disaster records ; but who has ever 
heard of casting lots at midnight, in a sinking boat, in the midst of 
darkness, of rain, of terror, and of confusion ? To cast lots when 



xcu 



BIOGRAPHICAL MEMOIR. 



all are going down, to decide wlio shall be spared ; to cast lots when 
the question is, whether any can be saved ? is a plan easy to sug- 
gest — rather difficult to put in practice. The danger was instanta- 
neous — ' a case,' says Eutherford, (Inst, of Nat. Law, book I., chap. 
16, § 5,) 'where the mind is too much disturbed to deliberate;' and 
where, if it were ' more calm,' there is no time for deliberation. The 
sailors adopted the only principle of selection which was possible in 
an emergency like theirs ; a principle more humane than lots. Man 
and wife were not torn asunder; and the women were all preserved. 
Lots would have rendered impossible this clear dictate of humanity. 
" But again : the crew either were in their ordinary and original 
state of subordination to their officers, or they were in a state of 
nature. If in the former state, they were excusable in law, for 
having obeyed the order of the mate ; an order twice imperatively 
given. Independent of the mate's general authority in the captain's 
absence, the captain had pointedly directed the crew to obey all the 
mate's orders as they would his, (the captain's,) and the crew had 
promised to do so. 

" It imports not to declare, that a crew is not bound to obey an 
unlawful order ; for to say that this order was unlawful, is to pos- 
tulate what remains to be proved. Who is to judge of the unlaw- 
fulness? The circumstances were peculiar. The occasion was 
emergent; without precedent or parallel. The lawfulness of the 
order, is the very question we are disputing ; a question about which 
the whole community has been agitated, and is still divided ; the 
discussion of which crowds this room with auditors past former 
example; a question which this court, with all its resources, is now 
engaged in considering — as such a question demands to be consi- 
dered — most deliberately, most anxiously, most cautiously. It is 
no part of a sailor's duty to moralize and to speculate, in such a 
moment as this was, upon the orders of his superior officers. The 
commander of a ship, like the commander of an army, ' gives des- 



BIOGRAPHICAL MEMOIR. Xciil 

perate commands.' He requires instantaneous obedience. The 
sailor, like the soldier, obeys by instinct. In the memorable, immor- 
tal words of Carnot, when he surrendered Antwerp, in obedience to 
a command which his pride, his patriotism, and his views of policy 
all combined to oppose : ' The armed force is essentially obedient ; 
it acts, but never deliberates.' The greatest man of the French 
Revolution did here but define, with the precision of the algebraist, 
what he conceived with the comprehension of a statesman} and liis 
answer was justification with every soldier in Europe ! How far 
the principle was felt by this crew, let us witness the case of this 
very mate, and of some of these very sailors, who, by the 
captain's order, left the jolly-boat, which had ten persons, for 
the long-boat, with more than four times that number. They 
all regarded this, as going into the jaws of death; yet, not a 
murmur ! It is a well-known fact, that in no marine on the ocean 
is obedience to orders so habitual and so implicit, as in our own. 
The prisoner had been always distinguished by obedience. Whether 
the mate, if on trial here, would be found innocent, is a c|uestion 
which we need not decide. That question is a different one from 
the guilt or innocence of the prisoner, and one more difficult. 

" But if the whole company were reduced to a state of nature, 
then the sailors were bound to no duty, not mutual to the passen- 
gers. . The contract of the shipping articles had become dissolved 
by an unforeseen and overwhelming necessity. The sailor was no 
longer a sailor, but a drowning man. Having fairly done his duty 
to the last extremity, he was not to lose the rights of a human 
being, because he wore a roundabout instead of a frock-coat. We 
do not seek authorities for such doctrine. The instinct of these 
men's hearts is our authority; the best authority. Whoever opposes 
it, must be wrong ; for he opposes human nature. All the con- 
templated conditions ; all the contemplated possibilities of the voyage 
were ended. The parties, sailors and passengers, were in a new 



Xciv BIOGRAPHICAL MEMOIR. 

state. All persons on board the vessel became equal ; all became 
their own law-givers; for artificial distinctions cease to prevail, when 
we are reduced to the equality of nature. Every man on board had 
a right to make law with his own right hand ; and the law which 
did prevail on that awfixl night, having been the law of necessity 
and the law of nature, too, it is the law which will be upheld by' 
this court, to the liberation of this prisoner." 



Upon the trial of the case of the State against 
Cranmer, for homicide, Mr. Brown introduced one of 
those simple, and yet powerful figures, for wliich his 
style is so remarkable. The defendant, who was a 
captain of a A^essel, was assailed while in port, by a 
body of Schuylkill rangers, and threatened to be de- 
prived of his command; seizing a handspike, he in- 
fhcted a terrible blow upon the head of the rmgieader, 
which, in the language of one of the witnesses, 
" crushed Ids sJcull like an egg-shell^ In the defence, 
upon this portion of the case, the advocate, in the 
highest pitch of excitement exclaimed : — 

'' The general, at the head of his army; the king upon his throne, 
is not more absolute than the commander of his vessel — fi-om a 
shallop to a seventy-four. What, then, would you have had this 
man to do — what weapon should he have used ? While surrounded 
by a gang of reckless, ruthless rascals, bent upon outrage and upon 
blood, was he right to maintain his post ? to vindicate his authority 
by commensurate means — or would you have had him rush to the 
hen-coop for afeatJier, to sweep these ruffians from his deckT 



BIOGRAPHICAL MEMOIR. 



xcv 



In the year 1835, a case of the Commonwealth 
against Starg, was tried — it was for murder. 

The death was clearly proved, attended by circum- 
stances indicating malice, and no inconsiderable delibe- 
ration. The only deficiency in the proof was in regard 
to the person by whom the offence was perpetrated. 
After all the other testimony was closed, the Hospital 
physician was called. Mr. Brown, who was waiting 
anxiously the denouement, and who saw clearly that 
the identity of the prisoner was the only thing to be 
feared, promptly demanded what the doctor was to 
prove ? " Dying declarations," was the immediate 
reply. " Before we come to that," said Mr. Brown, 
" I have something to say ; I am prepared to prove 
that the deceased was an atheist — an avowed infidel ! 
who denied a future state of rewards and punish- 
ments — who denied the truth of the Holy Bible, and 
declared it to be a romance ; and who disbelieved in 
the existence of the Almighty." This proof was 
accordingly made, and it resulted in the exclusion of 
the declarations and the acquittal of the defendant. 
Upon the argument upon this question, Mr. Brown 
contended that dying declarations were admissible 
only, Avhen they were founded on the consciousness 
of, and approach to, the judgment seat of Grod. The 
solemnity of that moment being equivalent to an 
oath — nay, more than equivalent to an oath, for no 
exparte oath could possibly be received. 



Xcvi BIOGRAPHICAL MEMOIR. 

" But how," said the counsel, " is this principle available, when a man 
lives as a beast and dies as a beast? looking to no hereafter. Such a man, 
if hving, could not be allowed to be a -witness ; he would not be permit- 
ted to contaminate the Book of Eternal Life, with his unhaUowed and 
sacrilegious lips. If, then, he could not be sworn — acknowledging no 
obligation that binds him to the truth — how can his declarations, 
living or dying, be received in a court of justice, in a case involving 
human life ? An avowed or admitted infidel, is divested of all his 
franchises ; the Constitution tolerates all religions, but does not tole- 
rate NO RELIGION — does not sanction blasphemy or a blasphemer. 
No man can hold a public office, who is an infidel ; from the Presi- 
dent of the United States down to a tipstafi" in this court, every 
officer is compelled to be sworn. No atheist can be sworn, and 
therefore no atheist can hold an office, however high or low. There 
is no injustice in this — the man who denies his God, should be pre- 
pared to be denied by his feUow-man." 

Sucla was the general course of the argument — the 
result is known. A few months after this, a minister 
of the Baptist church called upon Mr. Brown, and 
imparted to him the following gratifying intelligence, 
tending to show, that while saving the neck of one 
man, he had probably saved the soul of another. 
" Last week," said the clerical gentleman, " a person 
applied to be received into our church — our rules 
require that prior to such reception, the candidate or 
applicant shall relate his experience, as it is called — 
that is to say, communicate — the course of liis life — 
his faults and his omissions. 'I have,' said the candi- 
date, ' until some few months ago, lived a very irregu- 



BIOGRAPHICAL MEMOIR. XCvii 

lar life, and endeavored to relieve myself from its 
penalties, by arguing myself into tlie notion, that 
there was no hereafter to fear — no Almighty power 
to punish ; in short, I became a confirmed infidel. It 
happened, however, that I was present at the trial of 
William Starg, for homicide, and upon that occasion 
the perils of infidelity were so forcibly portrayed by 
the counsel, Mr. Brown, as connected wdth this world 
and the next, that my eyes were at once so opened to 
my lost condition, as to bring about an almost instan- 
taneous and entire reform. From that period I date 
my conversion, to a thorough faith in the sublime 
truths of the gospel.' " " This communication," said 
Mr. Brown, " is most gratifying, indeed. I trust the 
convert was sincere. But there were two positions in 
my argument ; one was, that infidelity kept a man out 
of heaven, and the other was, that it kept him out of 
office; to which consideration do you suppose the con- 
version was most to be imputed ? If he was not an 
office-seeJcer, he no doubt was a christian." 

In the year 1843, the case of " Farkin" for murder, 
was tried in the Court of Oyer and Terminer, of Phila- 
delphia County. For the history of this case, w^e are 
indebted to* the following sketch from the pen of one 
of Mr. Brown's opponents in the trial. We give it 
the more at length, as its extraordinary features will 
doubtless render it interesting and mstructive, not only 
to the legal profession, but to the general reader. 



XCVIU 



BIOGRAPHICAL MEMOIR. 



Among the very many and important causes, in- 
volving life and liberty, which it has fallen to the lot 
of Mr. Brown to carry triumphantly through the 
ordeal of a court of criminal law, perhaps no single one 
was more remarkable, than the case of the Common- 
wealth of Pennsylvania against John Farkin, tried for 
murder in the Court of Oyer and Terminer of Philadel- 
phia, in April, 1843. If the "quiddam honorarium" 
now-a-days in the profession, has become ahnost the 
invariable condition precedent for the appearance in 
the judicial forum of professional talent of the first 
order, to Mr. Brown's high honor be it spoken, that 
the destitute and oppressed ever find in him, in the 
midst of lucrative and important business, a kind and 
generous protector. Commanding business of the 
highest class, he will turn aside from it, with cheerful- 
ness and kindness, and exercise his fine abilities, in 
the trial of a criminal cause, where, beheving that the 
law opens an honorable defence for his chent, he can 
hope for no other reward than that derived from the 
consciousness of reheving a fellow-being in distress. 
It is this generosity of heart, moved by the impulse of 
genius, which has ever characterized those most emi- 
nent for forensic eloquence. Mr. Brown's career, Hke 
that of every distinguished advocate, abundantly 
proves, how rich in principle are the causes of the 
lowly and the poor, and how the creative powers of 
genius are able to call forth from them images and 



BIOGRAPHICAL MEMOIR. Xcix 

even truths, which never present themselves to the 
mind of ordinary power. 

The case of John Farkin was one of that class. He 
was a poor Irishman, who had emigrated to the United 
States in 1841, and for two years had picked up a 
precarious subsistence as an itinerant clock vender. 
On a pleasant Tuesday afternoon, in April, 1843, there 
was a happy little family collected around an humble 
meal, at a house in the neighborhood of Fairmount, in 
the county of Philadelphia. James Lehaman, his wife, 
and five young children, with a female relative, were 
assembled at the supper-table, and the work of the day 
was over. A knock at the door roused their atten- 
tion, and a man, subsequently, and soon after to make 
that circle one of mourning and death, presented him- 
self. He was ragged and dirty, but, beyond this, there 
was nothing remarkable in his appearance or manner. 
He inquired if the family had any clocks to mend, and 
an agreement was made that he was to repair a clock, 
and if it went well for four days, was to receive his 
pay, and, for that purpose was to call on the fourth 
day. These preliminaries being settled, he was taken 
to an upper room by James Lehaman, where he com- 
m.enced his work, and Lehaman returned to his family. 
In a short time Farkin returned, saying he had mended 
the clock. He picked up his tools, and asked permis- 
sion to board in the family, as he was very poor, and 
had no home. This was objected to by the wife, 



C BIOGRAPHICAL MEMOIR. 

although v>''ith entke consideration for the feehngs of 
Farkin; the reason given being that the house was 
small, and the family large. He complained of having 
lost his knife; it was looked for; but he stopped 
further search, remarking, that he had found it in his 
pocket. He then told James Lehaman to be at home 
on Saturday at four o'clock, and he would call to re- 
ceive his money. It was thus, and within the brief 
period of about a quarter of an hour, that Farkin first 
came into and left the house of his subsequent victims. 
An open common stood opposite the house of Leha- 
man. As soon as Farkin reached it, he was seen to 
return, and, approaching, he entered, without knocking, 
the house he had just left. His manner was com- 
posed, but determined, and the following dialogue took 
place between himself and Lehaman : 

FarJcin. — " I w^ant my money, or I'll break the 
clock." 

Lehaman. — " This was not our bargain. Where do 
you keep your establishment, that, if the clock is 
spoiled, I can find you ?" 

FarJcin. — " I keep my establishment in my pocket, 
Sir. 

Farkin became enraged at the last remark of Leha- 
man, or acted on his determination to carry into exe- 
cution his threat of breaking the clock, unless he was 
paid ; for he instantly rushed towards Lehaman, who 
was standing near the staircase, pushed him ^-iolently 



BIOGRAPHICAL MEMOIR. ^.i 

aside, and proceeded to go up stairs. Leliaman fol- 
lowed — endeavored to stop him — got on the stairs 
first ; his wife followed, and Farkin came up last. As 
he ascended, he was seen to take his knife out of his 
pocket, open, and hide it up his sleeve. Jane Leha- 
man (the wife) held her arm against the wall of the 
staircase, to impede the progress of Farkin; but he 
pressed forward, and putting his head under her arm, 
stabbed her husband, who fell instantly dead on the 
staircase. The deceased's eldest son, a little boy not 
more than nine years old, seeing his parents in that 
situation, not aware that the spirit of one had already 
fled, ran up to the murderer with a broom-stick in his 
little hands, to aid in their defence. It was the spkit 
of infantine heroism, kindled by the instinct of fihal 
love, that moved the heart of the brave boy to that 
unequal contest. The murderer turned, and looked 
at him, with the remark, " Eh, you've come to help 
your father;" and seizing him with one hand, he stabbed 
him with the other, and the noble child fell bleeding 
to the floor. Fortunately, that stab proved not to be 
fatal. The female relative now approached him, to 
aid in rescue of the child ; and at her, too, he plunged 
his murderous weapon. She escaped him, and hid up 
the chimney. Farkin next rushed, knife in hand, at 
the wife of the deceased, but she fled through a back 
door. He then hastily turned towards the front door, 
opened it, returned to pick up his hat, and then left 



(.^ BIOGRAPHICAL MEMOIR. 

the house. Jane Lehaman mstantly followed : death 
was m her household, terror m her countenance, and 
agony in her heart. She followed now, — far more an 
object of observation than the unhappy murderer ; for 
he walked calmly and deliberately along the pave- 
ment, stopped at the corner of a street, and the woman 
approached him. No words of repentance, no explana- 
tion escaped him. He said sternly to her, " Come one 
step further, and I'll treat you as I've treated the 
rest." So calm w^as he, that the neighbors, when first 
told by her of what had happened, could not believe 
that lie was the man who had done such dreadful 
deeds. 

But the cry of murder had gone forth, the widow 
charged him boldly, and blood was on his face. He 
ran, and the hue and cry was raised upon him. He 
ran fearfully; his knife was open in his hand; he 
struck at one, and another, who tried to arrest him, 
and finally, seeing a man making mortar in the street, 
rushed at him, and endeavored to seize his mortar 
hod. At this point he was arrested; he instantly 
threw his knife away, and said, " I give up." After 
his arrest, he said on his way to prison, " I pray God 
he is dead ; it was a fair contract ;" and while in pri- 
son, " I didn't give him half as much as I ought to have 
given him." Such is a brief synopsis of the facts. 
The indictment was soon presented, and the prisoner 
arraigned. 



BIOGRAPHICAL xMEMOIR. (.[jj 

Mr. Brown was sent for. 

By the Court. — " Mr. Brown, this prisoner is charged with mur- 
der; the officers of the government inform us that the case is one of 
great importance ; the prisoner is unable to employ counsel, and we 
desire to know, if you will represent him in the cause ?" 

Mr. Braivn. — " May it please your Honors, I am much pressed 
with professional engagements, but the peril of the prisoner and the 
suggestion of the court induce me to put them aside, and to under- 
take the duty the court is pleased to assign me." 

Junior counsel is associated with him, two days are 
given to prepare the cause, and on Friday, the 24th of 
May, it is called up. Mr. Brown, during no part of 
the trial, is more remarkable, or happy than in the 
preliminary skirmishing w^hich precedes the main duty 
of grapphng with his adversary in argument. 

It is not the intention of this notice to enter upon 
the details of the case of Farkin, as they appeared in 
evidence, under the plea of "insanity," which was 
entered by his counsel. The case was selected as 
illustrative of the ardor and devotion with which Mr. 
Brown clings to the cause of a destitute cHent, who 
confides to him in the hour of peril, and in jeopardy of 
life ; and how httle the dark features of the darkest 
criminal cause appal him. The court sat from ten 
o'clock, Friday morning, until near midnight of the 
same day ; and from ten, on Saturday morning, until 
half-past two on Sunday morning; when the prose- 



(.jy BIOGRAPHICAL MEMOIR. 

cuting officer made his closing speech, and the judge 
charged the jury. 

Mr. Brown, as usual, took the exclusive examina- 
tion of the witnesses. The government had not known, 
or omitted to prove the fact of the prisoner's assailing 
with his knife every one whom he met in his flight. 

Mr. Browai brought it out on cross-examination. 
The tyros of the bar smiled and whispered to each 
other, signifying, that with all his eminence as an ad- 
vocate, and his special reputation in the examination 
of witnesses, he had missed it in eliciting these start- 
lino; and unwelcome facts. Not so with the counsel. 
He boldly insisted upon exhibiting the whole of that 
bloody drama. Every scene in it he depicted with 
fidehty and power. If the facts of his defence made 
out insanity to the satisfaction of the jury, then every 
homicidal act by the prisoner was but the stronger 
proof of the theory of the defence. If the plea of , 
insanity failed, the counsel sagaciously determined that 
he could deduce from all this most unusual and fero- 
cious conduct of the prisoner, a strong argument, to 
show that he had committed the homicide under a 
violent burst and tempest of passion, rather than de- 
liberate malignity of heart. The case was so despe- 
rate, no boldness of interrogation could make it worse. 

It was shown that the prisoner was a poor outcast 
from happiness and home. He had deserted, or had 
been deserted by, a wafe and children. Those who 



BIOGRAPHICAL MEMOIR. gy 

had known him in earlier life in his own country, tes- 
tified that he had always been an isolated, desolate 
person, moody in temper, uncertain in habits and pur- 
suits. 

Many idle, extravagant things, done and said by 
him, as bearing upon the state of his mind, were in- 
troduced into the defence, especially (and but under 
one view, it was clearly irrelevant evidence,) his decla- 
rations and conduct after his imprisonment — one of 
the prison keepers testifying that the prisoner told 
him, " it was a fair bargain, to be paid when the clock 
was done; and then he would'nt pay me for four days. 
I went to go up stairs, to break the clock, or put it out 
of that ; he stopped me — threw an otter skin at me, 
and I then thrust a screw-driver into him." 

It was on this theory that Mr. Brown based an in- 
genious and powerful appeal to the jury. He rose to 
speak at about ten o'clock on Saturday night ; it was 
past midnight when he sat down. His speech on that 
occasion was one of great power, and infinitely honor- 
able to him, as a man of kindly and generous feelings, 
as well as professional merits. Never having seen the 
desolate prisoner before — never, perhaps, to see him 
again, his exertions in his behalf are most favorably 
remembered by all who were conversant with the facts 
at the time ; the opening of his argument for the de- 
fence, (Avhich in substance ran thus,) will never be 
forgotten by those present. 

VOL. I. — 8 



(jyj BIOGRAPHICAL MEMOIR. 

" If, when the court did me the honor to appoint me to defend 
the unhappy prisoner, they supposed that, in obsequious gratitude 
for the favor thus conferred, I should acquiesce in any judicial 
encroachment upon his legal rights, they did both him and me in- 
justice ; and to convince them of their error, I take leave now to 
deny the correctness of three-fourths of their decisions upon the 
points of evidence presented upon this trial. When I received your 
appointment, as I understood, it was to aid in defending him — not 
to assist in hanging him." 

Again : The Presiding Judge having proposed to the 
counsel, (after an ineffectual motion for an adjourn- 
ment,) that they should be limited in their speeches, 
on account of the lateness of the night, to one hour 
each, the counsel replied : 

" I acknowledge no limit in defence of human life, and I should 
scorn myself were I to submit to any. I tell you, therefore, gentle- 
men of the jury, if allowed by my strength, and required by my 
own sense of duty, I shall speak till the cock crows, in defiance of 
all arbitrary judicial restraint." 

Mr. Brown, though making the most of the evi- 
dence, seemed conscious that the plea of insanity was 
not sustained, and he exerted all his ingenuity and 
power to mitigate the degree of homicide, and reduce 
it to manslaughter. He pressed upon the jury, how 
the training of the heart and temper is affected by 
man's physical condition, how prone to angry passions 
are those, whose minds and feelings have expanded 
under the rigors and bitterness of ignorance and want, 



BIOGRAPHICAL MEMOIR. Qy]^ 

and how unequal are even equal laws, as applied to 
the different tempers and conditions of men. 

The attack of the prisoner upon the harmless child, 
he used with fine effect; and urged upon the jury, 
that if, under a full view of all the facts of the case, 
they should be of opinion that the fatal blow was 
given to the deceased in a moment, of even the most 
unprovoked passion, they must spare his life, and 
return a verdict for manslaughter. On the conclusion 
of the address of the officer of the government, the 
judge proceeded to charge the jury at two o'clock, A. M. 

By Mr. Braivfi, — " I object to your Honor's charging this jury, 
unless your colleague is on the bench." 

By the Attorney-General. — "Can we not consent to the charge 
in his absence ? it is a very unseasonable hour, and his Honor, the 
Associate Judge, has gone home." 

By Mr. Broiv?i. — " I consent to nothing, in a capital case ; it is 
as much his Honor's duty to be here as mine, and I shall take 
advantage of his absence ; as to the unseasonable hour, that is not 
my fault ; no hour is seasonable for the violation of law." 

The absent judge was sent for, who lived two miles 
off, and who had gone quietly off at about eleven 
o'clock. He was roused from his bed, and came in 
about half an hour. The jury received the charge at 
half-past two o'clock and retired; at nine o'clock on 
Sunday morning the prisoner was brought up, the jury 
returned to their box and rendered a verdict of guilty 
of murder in the second degree. Thus, by Mr. Brown's 



CViii BIOGRAPHICAL MEMOIR. 

devotion and abilities, may be said to have been saved 
the life of the unhappy prisoner; for certainly, no 
ordinary advocate could have turned aside the current 
which was bearing him towards death. 

The case of Morgan Hinchman against sixteen de- 
fendants, persons all of great respectability, and some 
of them of wealth, and influence, and position, which 
was tried in the Supreme Court of Pennsylvania, in 
March, 1844, though a civil case, was also one of a 
very remarkable character, and called out, with dis- 
tinguished success, the peculiar forensic talents of Mr. 
Brown. The case excited great attention; it com- 
menced on the ninth of March and continued until the 
seventh of April. The facts of the case were very 
original ; a crowded auditory thronged the court-room 
from the beginning to the end of the trial; the first 
talent of the bar was engaged, and the result of the 
verdict proved abundantly that the defendants had 
cause to approach the investigation with anxiety and 
ample preparation. As it is designed to give some 
extracts from Mr. Brown's address, to throw before the 
reader a correct impression of his style and matter, a 
brief statement of the case may be necessary. 

Morgan Hinchman was a young man of respectable 
connexions, a member of the Society of Friends, re- 
siding with a wife and a young family of children, in 
a neighboring county, apparently prosperous and 
happy. On the evening of the fifth of January, 1847, 



BIOGRAPHICAL MEMOIR. cix 

he left his farm to attend the market in Philadelphia. 
Before his departure he arranged many little domestic 
affairs with regularity and care, and when in Phila- 
delphia, after ^disposing of his produce, attended to 
some business relating to a loan of money, by a mort- 
gage on his farm. On the morning of the seventh, the 
transactions occurred which gave rise to the subse- 
quent suit. At the same hour of that morning, the 
hour previously fixed upon by Morgan Hinchman for 
concluding the negotiation about the mortgage, several 
of the defendants assembled at the same place and 
arrested Morgan Hinchman, after informing him that 
they were about to take him to the Frankford Lunatic 
Asylum. Without repeating the details of the case, 
it is sufficient to state, that in pursuance of their plans 
previously laid, and spite of the resistance of the 
alleged lunatic, he was carried to the Asylum and 
restrained of his liberty for several months, as an 
insane person. It was for a conspiracy, accompanied 
by the overt act of his imprisonment, that an action 
for damages was brought, the parties charged being 
not only those actively combined in the arrest, but 
others, by whom it was alleged, a less active, but 
equally culpable part, was taken in the proceeding 
against the plaintiff. It is just to this statement of 
the case to remark, that the defendants, one and all, 
denied, in every way and form, the charge against 
them. They alleged that Morgan Hinchman was 



^^ BIOGRAPHICAL MEMOIR. 

taken to the Asylum at the request of his wife and 
mother, upon the certificate of a very competent medi- 
cal adviser, and that he was, at the time of his arrest, 
and had been for a long time previous, a lunatic. 
It w^as admitted that he was apparently quiet, 
intelligent and rational; but that he was, for the 
most part, and with reference to his domestic 
relations, uniformly of unsound mind; that on one 
occasion he had beaten his own mother in his orchard, 
while she was his guest; that he was always very 
restless and unhappy in his family ; that his worldly 
affairs were in confusion; and particularly that his 
wife's property, of which he had obtained the control, 
was disappearing under his management. It was fur- 
ther alleged that he had been declared a lunatic, by an 
inquisition of lunacy, and that all the acts complained 
of by the plaintiff were authorised by law, and intended 
for his benefit. 

That the issue involved may be fairly presented on 
both sides, it must be stated, that many of these alle- 
gations by the defendants were denied, others, though 
in part admitted, were brought forward in connection 
with other facts, Avhich gave to the whole case features 
of aggravation. It was a circumstance in the plain- 
tiff's case, that one of his children had died during his 
imprisonment, and that he had always shown skill in 
the management of his affau's. The plaintilF's coun- 
sel, in a word, contended that there was a malicious 



BIOGRAPHICAL MEMOIR. ' g^^j 

intention to confine Morgan Hinchman, and take his 
property out of his own control, in order to gratify 
either a lust for power or the vindictive feelings of 
professed friends. Much strong and conflicting evi- 
dence was offered on each side. Three counsel pre- 
ceded Mr. Brown, in speeches of great power; and 
on Good Friday he commenced as follows : 

" Upon this day, Grentlemen of the Jury, this holy day, while the 
great masses of the Christian community are devoutly engaged in 
a public manifestation of pious gratitude for the priceless and free 
sacrifice, which redeemed the fallen family of man from the mise- 
ries of eternal death, it is a melancholy and painful duty to be 
compelled to force upon your attention, the persecution and oppres- 
sion, the cruelty and barbarity, practised, or alleged to be practised, 
(for I take nothing for granted,) by a body of professing Christians, 
lovers of peace, and followers of a meek and lowly Saviour, against 
an unoffending fellow man. 

"My learned friend, though professional adversary, has ventured, 
in the close of his remarks to appeal to you, and to attempt to enlist 
your sympathies in behalf of the defendants in this ease, closely 
connected together as they have been, from the first to the last, as 
a solid phalanx, in an unsparing opposition to Morgan Hinchman. 
Instead of casting an eye of pity or commiseration upon the help- 
less condition of the plaintiff, upon his destitute and disgraced con- 
dition, all his humanity seems to be absorbed by a sympathetic 
regard for those whom he professionally represents, and who are the 
actual offenders. 

"When Pilate — and it is an apt illustration upon the pi-esent 
occasion — meanly yielded to the clamors of the multitude, and 
washing his hands in their presence, surrendered the Saviour of 



^^^ BIOGRAPHICAL MEMOIR. 

mankind to an unholy and infuriate combination, consoling timself 
by exclaiming, 'I am innocent of the wrongs of this just person,' 
he adopted, by anticipation, some portion of the argument resorted 
to by this defence. He only stood by, forsooth, and did nothing ! 
He was innocent of the blood of the accused ! But let me tell you 
now — and it will be a subject of elaborate descant hereafter — ^let me 
tell you now, that that man, however elevated or respectable, who 
stands .by patiently, and acquiesces in a wrong that is about to be, 
or has been committed, imparts to the wrong-doer the aid and sup- 
port of his presence, and thereby participates in the offence. Although, 
like Pilate, he may console himself with the operations of washing 
off external guilt, he shares in that evil, shares in that crime, which 
he neither endeavored to prevent, nor was disposed to resist or 
redress. That is my doctrine, and we shall soon see how it will 
abide the test, when I come to apply it in requisite connection with 
the different portions of this case, in^which that point of inquiry is 
involved." 

After this appropriate reference to the clay, in con- 
nection with the case, and an allusion to some of the 
incidents of the trial, Mr. Brown proceeded to the. 
court : '. '^ 

" May it please your Honor, I never had more occasion to enter- 
tain confidence in a judicial officer, than I have now. I never felt 
more distinctly, or more deeply, the necessity for entire reliance 
upon the integrity of a judge. I think, during the progress of this 
cause, your Honor's mind may have wavered, as is proper it should 
do, in relation to certain legal points j yet I have not observed, and 
I am certain, in relation to the discharge of your duties, I never 
shall observe, the slightest vacillation or unsteadiness, in regard to 



BIOGRAPHICAL MEMOIR. Cxiil 

the immutable principles of justice. It will be my duty, as far as 
within my power, to relieve you of any doubts hitherto entertained, 
and if I do not settle, beyond question, the entire fallacy of the 
whole doctrine of the defendants' counsel, and show that at most it 
is a mere castle in the air, resting upon no other foundation than 
fancy or error, then I will submit, as a philosopher ought, and calmly 
encounter the consequences." 

Mr. Brown is never a very long speaker — on this 
point he remarks : 

" I am not, allow me to say, one of that class of advocates — 
though I speak in no disparagement of others — who seem t^ con- 
ceive the length and strength of a speech to be synonymous ; I shall, 
therefore, if I have measured myself rightly, occupy comparatively 
but a short time in discharging the duties that have fallen to my 
allotment. If my argument be to the purpose, it cannot be too 
short, and if it be not appropriate to the cause, and calculated to 
aid you in your deliberations, and secure your arrival at just results, 
it must certainly be too long." 

From the previous great respectability of the parties 
to this action, and the influence and position which 
many of them enjoyed, it w^as argued with great confi- 
dence, and some force, that the plaintiff had the weight 
of probabilities against him, upon the question of mali- 
cious intentions, in the excellent previous character of 
the defendants. To these points Mr. Brown, before 
entering the heart of the case, alluded in the following 
forcible strain : 

" This, as my learned friend has justly told you, is a most im- 



Cxiv BIOGRAPHICAL MEMOIR. 

portant case. Not, as you will perceive at a single glance, with 
reference to the stupendous magnitude of the pecuniary amount 
involved ; not that it embraces any considerations directly affecting 
human life, but because it is unparalleled by any proceeding recorded 
in the annals of American jurisprudence 5 and because it compre- 
hends those momentous principles, without the sanctity, protection 
and vindication of which, even life itself would be a burthen, and 
the world a waste. Let me conjure you to think well of this — don't 
suppose that the question here is merely, whether forty thousand 
dollars are to pass from the pockets and coffers of the wealthy and 
respectable, into the pockets and coffers of the poor and destitute. 
I scorn to put this case on any such footing. I am not here as a 
pauper, to beg ; and if I were, the last men to whom I would apply 
to relieve the wants or the necessities of the plaintiff, would be his 
heartless persecutors and oppressors. I am here for justice j answer — 
shall I have it ? That is the question. I don't come to steal it ! I 
don't intend — borrowing an example from the defendants — to take 
it by force. I don't come with my corporal's guard, or armed myr- 
midons, for the purpose of wresting it from you. I come here to 
demand it ; here, in this court of justice ; and I present to you the 
basis upon which I build my claim. My learned friend has said — 
and whatever he says he says well, and skilfully too — that if you 
give a verdict for the plaintiff, you deeply affect these defendants in 
the estimation of the community. These respectable men ! I dare 
say, you will suppose it rather strange to call them so, in connection 
with this case ; but whether they are respectable, powerful, wealthy, 
or otherwise, matters nothing to me, and should matter nothing to 
you. Those are not the vital considerations here. I don't ask them 
to share their wealth, unless we are entitled to it, as an indemnity 
for our wrongs. I invoke no prejudices. I don't desire to oppress 
them ; on the contrary, the whole philosophy of this case is reared 
upon a very different doctrine. 



BIOGRAPHICAL MEMOIR. CXV 

" If, instead of a legitimate defence, they talk of respectability, 
I give my answer in the words of Samuel Beans, the venerable indi- 
vidual who has been so much censured here, because he ventured to 
encounter this self-created autocracy, if I may call it so. I answer 
them in his simple, though [powerful language : ' Your characters 
must be very good, if they will resist the flood and current of proof 
in regard to this transaction, which sets against and overwhelms 
them.' 

" Why, these sage, grave men, attempt to make character a mere 
marketable commodity, not that priceless jewel that my learned 
friend has spoken of. It is to be a mere shield and protection for 
iniquity and outrage ; for that is what I understand to be the prac- 
tical end and application of the argument. I agree that character 
is everything; I agree that the human frame is but a tawdry, empty, 
worthless casket, when that jewels gone. But where shall this doc- 
trine land us ? That's the point. Had Lord Bacon no character ? 
' The wisest, brightest, meanest of mankind !' Had he no intellectual, 
no moral, no national, no universal character ? broad and expansive 
as nature itself; yet all this did not save him, when he had comit- 
ted an atrocious wrong, and sullied the pure ermine — the judicial 
and national glory, of his country. Was not Dr. Dodd a man of 
high character 1 Yet all his character could not save him from the 
gallows ! Nay, if you will pardon me — it is pertinent to the time, 
and I introduce it with becoming reverence for its association — was 
not Judas, one of the disciples, a man of character, until he traitor- 
ously betrayed his master with a kiss, and basely sold the Redeemer 
of the world, for thirty pieces ? 

" Character, so far from being a defence, so far from being matter 
of vindication or protection, where the testimony is calculated to 
enforce the claims of the plaintifi", is matter of aggravation, disgrace 
and confusion. What is there — while I admit and maintain the 
elevated position in which character places man — what is there, I 



Cxvi BIOGRAPHICAL MEMOIR. 

say, that degrades' him, even^below the lowest depth of odium and 
contempt, more than its willing and wanton sacrifice ? Why, was 
not Lucifer — surnamed the Morning Star, before his fall — one of the 
brightest spirits among the angelic hosts ? He then stood the highest 
and the purest ; and for that plain reason, now stands the lowest and 
the blackest. I wish this subject'of character distinctly understood ; it 
is a sort of mawkish sentimentality, too often introduced to lend 
grace to a desperate defence. It is like a moon-beam on a thunder 
cloud, making the gloom more dreadful. I repeat it, I am disposed 
to pay as warm a tribute to the regard in which reputation is held, 
as any man. But I have no notion, no idea, sir, that gentlemen 
like these, or any other persons, should imagine that there is any 
personal hostihty on my part towards them, because I take leave to 
speak of them as they deserve." 

No professional mind, especially one conversant with 
the practice and principles of criminal jm-isprudence, 
will fail to appreciate this jnst reference to the evi- 
dence of character, when offered as a substantial part 
of a defence at laAV. 

Reference was made by the opposite counsel to the 
Frankford Asylum, to the beauty of its external, and 
the comfort of its internal arrangements. On this, as 
a minor point of the case, the sj^eaker proceeded as 
follows : 

" Let us turn to the beautiful picture prefixed to the accompany- 
ing history, written by Dr. , upon the moderate compensation 

of six hundred dollars a year, for one or two flying visits a week. 
That history has been read here by the counsel, almost in extenso j 



BIOGRAPHICAL MEMOIR. 



cxvu 



and certainly ' ad nauseam;' he tells you it is a perfect paradise; — 
don't let him ensnare you with 'mere springes to catch woodcock.' 
AVould you not now suppose, from this poetic, and romantic, and 
rapturous description of the Frankford Asylum, that it was a perfect 
Arcadia ? See how well it appears in the engraving and in print ! 
Only behold the terraces, the lawn, the gravel-walks, the flower-gar- 
dens, roses, deer-parks, and everything of the most attractive and 
alluring character ! And all these luxurious indulgences, says our 
learned friend, are supervised and secured, without even the equiva- 
lent of a salary. Amazing philanthropy ! How is this ? It seems 
very wonderful ! But that wonder disappears, when you are told 
that it is not the fact. Philip Garret, Dr. Worthington, Dr. Evans, 
and a whole retinue of keepers, are all abundantly paid. I don't 
mention this as a matter of complaint, but in reiutation of their 
pretensions, which have been introduced as a part of the defence. 
And I beg leave to say, with all respect and deference to the learned 
counsel, that it was an abuse of the patience and time of the court 
and jury, to press so elaborately upon us, the very equivocal and 
somewhat meretricious attractions of a private mad-house. I wish, 
when you can be brought to think yourselves insane — though, accord- 
ing to the Doctor's notions, you will never be sane until then — you 
would take up your lodgings in this most magnificent boarding-house; 
making, however, the special provision, that you shall have the 
benefit of the Habeas Corpus Act, in case it so turn out that you 
should be awakened from your slumbers every hour of the night, or 
nearly beaten to death by some of its civil and courteous inmates. 
"Why, Grentlemen of the Jury, this outward parade of comfort 
is only calculated to sharpen the agony of the sufierer. Do you — 
can you suppose, that the free bird that has been accustomed to 
scale the blue vault of heaven, when entrapped and consigned to a 
costly cage, is consoled by the consideration, if I may ascribe consi- 
deration to a bird — rather let me say its instinctive emotional feel- 



CXviii BIOGRAPHICAL MEMOIR. 

ings ? (to borrow something from the doctors,) — Do you suppose, I 
say, it is comforted by the fact of the cage being of gold ; or, will 
it not rather beat its fluttering little life out against those golden 
bars, that shut it in from liberty? It is useless, therefore, nay worse 
than useless, to resort to these empty lures. I don't care if this 
Asylum were made of ' one entire and perfect chrysolite.' What 
does it come to? What is all that to the famished soul? the de- 
graded and debased spirit, the humiliating sense of a two-fold bond- 
age — bondage of the body, attended with imputed bondage, at least, 
of the immortal mind." 

With one other extract, relating to the examination 
of the plaintiff before the inquisition of lunacy; and 
which produced, on its delivery, a general outburst of 
applause from the assembled multitude, we shall close 
our notice of this remarkable case — thus it runs : 

" They call it an INQUISITION. How appropriate, though how 
terrible the name. Merciful Heaven ! Let Spain no longer be 
abused — no longer revile that benighted region for her folly and 
fanaticism — no longer reproach her for her chains, her racks and 
her tortures, and aU the accursed machinery of human wretched- 
edness and human degradation — since here, in this boasted land of 
equality — here, in this hospitable asylum from persecution and 
oppression — here, in this thrice glorious and sacred sanctuary of 
enliohtened liberty and equal rights — if principles hke these are to 
be tolerated, advocated, or allowed, every doctor is a spy — every 
lawyer an inquisitor — every superintendent a jailor — every citizen 
a victim, and every domicil a dungeon." (Loud applause, which 
his Honor could scarcely restrain.) 

Mr. Brown is of the middle height, compactly made, 



BIOGRAPHICAL MEMOIR. ^^ix 

with a full, round chest; his forehead is high and 
broad ; eyes black ; mouth large, and filled with the 
finest teeth imaginable ; a gift almost essential to an 
orator. His voice is of great compass : it ranges from 
the lowest notes of the flute to the highest blast of the 
bugle. He has an admirable temper. No one ever 
saw him lose his self-possession, even in moments of 
the greatest anxiety, tumult and consternation; nor 
can it be discovered from his deportment during a trial, 
whether it is prosperous or perilous. If there be any 
difference, it consists in this — that he steers his bark 
more boldly in a rough sea. We have often seen him, 
in forensic conflicts, involving considerations of life and 
death — where even the by-standers seemed terrified and 
appalled — cahn and collected, and firm as a rock, amid 
the wild and wasteful ocean. 

In rising to address the court and jury upon any 
matter of deep concernment, he almost invariably be- 
comes pale, and continues so until the reaction in the 
system takes place; then his eyes sparkle or melt; 
his voice varies according to the theme ; all his features 
are in fuU play, and the most accomplished actor, in 
his attempts at dramatic effect, never was more true 
to nature. 

Mr. Brown is said to quote a great deal from Shaks- 
peare; this, we think, is a mistake. That he is a 
devotee to the immortal bard, no one can doubt, but 
still he draws from him less, than many members of the 



^^^ BIOGRAPHICAL MEMOIR. 

bar, and much less than he quotes other authors. No 
man, it is true, is more familiar with the "myriad- 
minded" poet. The reason assigned for it is tliis : Mr. 
Brown s parents were Quakers, and by them, the read- 
ing of Shakspeare by their son, was strictly prohibited ; 
nevertheless, though it does not speak well for his obe- 
dience, he sought " the sealed book," and at the early 
age of ten years made himself master of its treasury, 
and built upon this best of all models, the entire struc- 
ture of his language. And now, as Chief Justice 
Gibson once said, "He does'nt quote Shakspeare, but 
speaks Shakspeare." 

Mr. Brown is not a flippant speaker, nor what is 
generally called a fluent speaker. He is an eloquent 
speaker. His manner, his matter, his language, all 
cohere together, and are all directed to the enforce- 
ment of his argument. In his management of a cause, 
he is like no one else, and although he has many imi- 
tators, the copies have not the slightest resemblance 
to the original; the one springing from nature, the 
other from art. In his most rapid declamation he 
never halts or stumbles — never drops one word, and 
picks up another — never falls into false granmiar or 
incorrect pronunciation — never, in quoting, departs 
from his text, but blends the most scrupulous exact- 
ness with the most overwhelming energy. Blessed 
with a clear and distinct memory, he rarely resorts to 
notes, either for evidence or arrangement : but having, 



BIOGRAPHICAL MEMOIR. (.^xi 

as it were, everything in his own mind, his great effort 
seems to be to transfuse it into the minds of others. 

Notwithstanding these admirable quahties, some of 
his notions are pecuhar. Great men, with few excep- 
tions, are said to be indifferent to mere externals — to 
despise costly or gaudy apparel, and the display of 
tinsel and finery. Not so, however, with the subject 
of this memorial. He is, perhaps, too much devoted 
to dress, though apparently regardless of it ; and in- 
stead of attempting to excuse, he vindicates his pro- 
pensity to display. Upon a recent occasion, when 
rebuked by an adversary who was of an opposite 
taste, he promptly replied, that "he had never known 
a man to speak well in clumsy boots, nor to have a 
clean mind, with dirty hands and face; but that he 
had known many a fop that was not a fool, and many 
a sloven that was not a Solomon." "A becoming 
decency of exterior," said he, " may not be necessary 
for ourselves, but it is agreeable to others ; and wliile 
it may render a fool more contemptible, serves to em- 
beUish inherent worth. It is like the polish of the 
diamond, takmg something, perhaps, from its weight, 
l3ut adding much more to its brilliancy and attraction." 

In endurance, and what may be called the alacrity 
and facility of labor, as well as the ability to make sud- 
den transitions from one mental employment to another, 
without any signs of distress, he stands alone. We 
have seen others do this, but never with so much ap- 

VOL. I. — 9 



CXXii BIOGRAPHICAL MEMOIR. 

parent ease. Mr. Brown has been known repeatedly 
to be engaged upon trials going on in four courts at the 
same time, and to give the necessary attention to all, 
and to argue all, without confounding facts and names 
of parties or witnesses in the course of the discussion. 
It is not so remarkable that this should be done, as 
that it should be so well done. 

In explanation of this faculty, we have seen in his 
Diary, a passage from which we have been permitted 
to make an extract, and which runs thus : 



" I am conscious of the ability to think of what I 2')lease — to 
abstain from thinking of what is painful or disagreeable; or to 
avoid thought altogether. The first of these mental powers seems 
to depend upon su/periority of attention; the, second, upon concen- 
tration of attention upon one subject, which, while it lasts, necessa- 
rily excludes all others ; and the last is what may be called diffu- 
sion of attention, which, while it sees everything, leaves no definite 
or distinct impression upon the mind — no consciousness of any one 
thing, to the exclusion of others. The last of these faculties, as 
opposed to the natural character of the mind, is the most difiicult of 
attainment, and the most difficult to shake off. It is for the time a 
mental dreamy chaos, where every thing exists, but nothing plainly 
or in order P 



For the last quarter of a century he has been inces- 
santly employed, and spoken almost daily ; and after . 
labors such as we have mentioned, in the different 
courts, he will proceed, without interval or refresh- 



' BIOGRAPHICAL MEMOIR. CXXiii 

ment, to his three or four arbitrations or audits, and 
finally, in the evening close his toils, by delivermg a 
discourse for hours before some college class, or lite- 
rary, or political association. Thus passes his life. It 
is nearly closed — and it may be truly said, that there 
have been few lives of greater labor, or greater plea- 
sure. No man has ever seen him angry or discon- 
tented. In prosperity and adversity he is unchanged, 
apparently unaffected, and the elements are so mixed 
in lum, that he seems to t4ike with equal favor, for- 
tune's buffets or rewards. 

A lawyer's life, it may be said, without intending 
any play upon words, is emphatically a life of trials. 
He has scarcely any domestic existence ; and the more 
extensive his business, the more applicable is the 
remark. He neither rises nor falls with political dy- 
nasties, — shuns legislative honors, and disdains official 
dignities ; he moves and breathes, and has his being 
almost solely amidst the crowds and clamors of diversi- 
fied litigation. There he often encounters abilities of the 
first order, and sometimes perhaps of the worst order. 
There his temper and his talents are both daily and 
hourly tested. His triumphs and defeats are so inter- 
woven, or the one follows the other so closely, that 
they almost lose their distinctive identity, and blend 
the pleasures and pains of life so together, as to render 
it difficult to determine which is the more prominent 
and prevalent. One day is like another in this — 



CXXIY BIOGRAPHICAL MEMOIR. 

that all are busy — all are anxious — all are made up of 
hopes and fears, clouds and sunshme ; and so continu- 
ous and unvaried is this truth, that this uninterrupted 
variety actually becomes monotony, still running as it 
were, in a circle, travelling over the same ground, and 
knowing no end. 



/ 



INTRODUCTION. 



The reason why there are supposed to be so many 
new thmgs m the world, notwithstanding the doctrine 
of Solomon, that "there is nothing new under the 
sun," is, that so much that is old is lost sight of or 
forgotten. When we are told that every thing that 
existed in the beginning is, perhaps under new phases, 
in existence still, and that though the affinities of 
matter be destroyed, the elements remain, and no 
atom has been lost in the various mutations of the 
universe ; what natural philosophy thus teaches, we 
implicitly believe. But when any thing in the form 
of a novelty presents itself, in moral, social or intel- 
lectual life, we are prone to think that the countless 
years that have passed, never furnished its precedent 
or parallel. Weak and vam man ! Those very novel- 
ties existed in years " long since numbered with those 



QXXYl I N T R D U C T 1 X. 

beyond the flood," — and were forgotten, renewed — 
renewed and again forgotten ; and such will continue 
to be the course of events until time shall be no more. 

In order, therefore, that men while living for the 
present and future, may be permanently instructed in 
the lessons and experience of those w-ho have gone 
before them, and inherit the benefit of their example, 
it is certainly commendable, that the old in passing to 
their heirs or successors their well earned fame or 
fortune, should transmit to them also, that knowledge 
of the nature and character of men and things, without 
which fame and fortune can neither be appreciated nor 
secured. 

As, without the recollections of its youth, age would 
be debarred of its greatest pleasures and enjoyments — 
so, without the precepts and examples of age, youth 
would be deprived of its chief knowledge and protec- 
tion — of the salutary guidance which the hard earned 
experience of others may have supplied. The memo- 
rials, therefore, of men who, after a life of labor and 
deserved honor, have in the fulness of time, " like the 
sun, showing their greatest countenance m their lowest 
estate," sunk into the grave, are appropriate and in- 
structive lessons to those Avho are about entering upon 
the busy and throngmg scenes of a tumultuous and 
precarious world. 

Every man forms for himself his own horizon, and 
he sees nothin.a: but that which is above it — ^but if that 



INTRODUCTION. CXXVii 

which is seen or known by those of one age, were trans- 
ferred to those of succeeding ages, the scope of man's 
mental vision would be incalculably enlarged, and thus 
by a^^oiding the errors and faults, or emulating the wis- 
dom and virtues of the pa67^ ; the present, instead of 
being an age of experiment, would be an age of com- 
parative certainty and security. 

The knowledge of life that forty years supply, even 
with the wisest and keenest observer, is comparatively 
nothing — still, when connected with antecedent and 
subsequent history, it may impart valuable Mghts and 
shadows to the picture, which the hand of time im- 
presses upon life's canvass. Nothing that relates to 
man, in his temporal or eternal conditions, should be 
indifferent to man. The experience of others furnishes 
our cheapest instiniction, and to despise or disregard it, 
often condemns us to the heaviest penalties. 

There are few" subjects more gratifying than family 
traditions. Ancestry and heraldry derive all their in- 
terest from the noble emotions, impulses and actions 
with wdiich, while we perpetuate ourselves, we inspire 
our descendants. But how much more instructive and 
))eneficial must be the record of a large professional 
femily, consisting of the choice and master spirits of 
the era in which they lived, when honestly handed 
down to their descendants. How emulous must the 
son be, not only of sharing, but rivalling or even im- 
proving the glory of his father. How careful should 



CXXviii INTRODUCTION. 

he be, if lie cannot increase, not to dimmish, his inherited 
fame, hut to pass it imohscured and unimpau-ed as a 
rich legacy to his issue. 

Nor is this consideration less important to those who 
have no forefathers' feet to stand upon. They have at 
least posterity to look to, and like Napoleon, they may. 
be the founders of an illustrious race. Or hke Banquo 
though no kings themselves, still theu' children may be 
kings. The golden round is before them — ^the power 
to grasp it is theirs, and if they fail, the curse of failure 
will be theirs. Nay not upon them only will it fall, 
but upon those whom they represent, or who may follow 
them. Remember, the Almighty never created a man 
whom he did not endow with the abihty to sustain him- 
self, and to discharge the obhgations imposed upon him. 
And remember also, in the language of Richeheu, '• That 
in the lexicon of youth, wdiom fate reserves for a bright 
manhood, there's no such word as fail !" 

" All things are readj- if the mind he so.'" 

This, as intimated in the prospectus, is the first 
work of the kind that has been presented to the 
pubhc in this county. Indeed there has been no 
pubhcation, so far as known to the author, in any 
country, that presents Forensic Life so minutely 
and prominently to the reader. Cicero, Quintillian. 
Pliny, and other illustrious ancients, have furnislied 



INTRODUCTION. 



CXXIX 



US with abundant instruction in regard to the moral, 
intellectual, literary and scientific qualifications of 
orators and advocates : Le Tellier, Pasquier, and 
D'Agesseau, of the French Noblesse de la Robe — 
" who were not born to die" — have added largely to 
the stock of knowledge derived from the theories and 
practice of antiquity. The Lives of the Chief Jus- 
tices and Lord Chancellors of England, by Lord 
Campbell, invite no special attention to the Members 
of the Bar — their habits, their learning, or their elo- 
quence ; yet most, if not all the authors referred to, 
have omitted those details of professional life and those 
personal delineations and sketches, which unite the 
present with the past, and tend more, perhaps, than 
an}^ thing else, to bring us into companionship with 
the founders and sages of the law, and thereby enable 
us to associate those who adorned the earher systems 
of Jurisprudence, with their less venerated and dis- 
tinguished successors. 

It must not be understood, however, from these 
remarks, that it is my purpose to write the biography 
of those illustrious men to whom attention will be 
invited. The design is merely to exhibit general, 
and, it is .to be feared, imperfect outlines of their pro- 
fessional character and position. 

The peculiarities of men, which are the distinc- 
tions between men, are entitled to be noticed ; be- 
cause, without them the portrait is as flat as the 



(^X^KX INTRODUCTION. 

canvass, and would scarcely be recognized by any 
one, as a likeness or copy of the original. Those 
peculiarities are not presented for the unitation of 
others, but may be adopted, approved or rejected, as 
taste or judgment shall du^ect. Plutarch in his 
Lives, and Baker and Hollingshead in theu^ Enghsh 
Chronicles, did not deem it unworthy of thek res- 
pective tasks, after a general description of the 
scenes through which then' heroes passed, to bestow 
some little attention upon their persons, then- man- 
ners, their habits and comparative merits; and we 
therefore, may be pardoned for an occasional and 
humble imitation of the example. 

My business is more with men than tilings. The 
speeches of any one of those whom I shall descilbe, 
would form almost a professional Hbrary in themselves, 
and of course be inconsistent with the limits of this work, 
but some of the occasions upon which they were made — 
thek character, and the effects produced by them — form 
interesting and important items in the formation and 
history of the Bar, which certainly ought not to be 
disregarded. For they supply the foundation upon 
which rests the entire structure of our present 
Forensic Fame, and our future professional Hope. 

This work is designed chiefly to exhibit the public 
lives of the members of the Legal profession, — ^indeed 
a, Lawyer in full practice can scarcely be said to have 
any private life. The community seems to form his 



INTRODUCTION. CXXXl 

family, and amid the cares and distractions and employ- 
ments of business, he has no leisure but that which is 
constrained. The members of the Bar are, it is true, 
admirably quaUfied for society — they are full of infor- 
mation and anecdote; the whole volume of human 
nature seems to be open to them — the dehghts of hte- 
rature and the charms of science, are at their command ; 
but still it is obvious, that being so perpetually engaged 
in their arduous professional pursuits, it is difficult for 
them to throw off theu" fetters, and display those intel- 
lectual treasures which they eminently possess. The 
intervals of leisure are brief, and brief as they are, 
always clouded by anticipation of renewed toil, or 
" sickly'd o'er by the pale cast of thought," or the ex- 
haustion of past labors : So that the sprightliness and 
buoyancy of the mind are essentially diminished, if not 
impaired. Yet notwithstanding this, it not unfrequently 
happens that, like Sampson, they break the withs which 
bind them, and resume, for a time, all their native 
activity, freedom and strength. 

Our purpose however, is not du-ected to domestic or 
social, but to professional Life, — and even there, while 
it is the duty of the historian to depict things as they 
are, it is equally his duty to avoid any unnecessary 
encroachment upon the feelings of others. Great cau- 
tion is required, while noticing the departed, to avoid 
giving pain to survivors. This however, is less to be 
apprehended upon this subject, as, though the Bar and 



CXXxii INTRODUCTION. 

the Bench had some pecuUarities, they had very few 
vices. There were no TresiUians, or Wrights, or 
Kelynges, or Pophams among them. 

But if the dehcacy be so great in regard to those 
who are no longer with us, what must it be, in occa- 
sionally noticing our associates — those w^hom we daily 
meet in the intercourse of social, or the arena of profes- 
sional life. U|)on that subject all that can be said is, that 
no animosity or envy shall be infused into these sketches 
— but upon the contrary, our brethren shall be spoken of, 
as they would be spoken to, in a spirit of fraternal kind- 
ness and conciliation, corresponding with the harmony 
and friendship by which the intercourse of the Profession 
has always been characterized. There are no asperi- 
ties, no jealousies, no rivalries at the Bar ; each man is 
apparently satisfied in his own sphere, and if he does 
not shine in direct radiance, he at least enjoys collat- 
eral light. Towards the Judges — the fathers of the 
Bar — there is not only habitual respect, but a sort of 
filial reverence entertained, and if at any time it should 
be lost sight of, the cause will not be fomid in the wan- 
ton disobedience of the children, but in the severity or 
despotism of the parents. 

Having presented a general view of my design — and 
its incidental difficulties — I may be permitted in con- 
clusion to say, that my chief motive for engaging in this 
undertaking, is the desire to furnish some few memorials 
of the legal profession. If this work be not attempted 



INTRODUCTION. CXXxiii 



now — ^it never will be. Every hour diminishes our 
recollections of by-gone days ; but a few glimpses re- 
main ; and a few short years will obliterate every 
Adew and vestige of what, in the passing and changing 
pageants of Hfe, has been so interesting to us all. 

If this humble effort should accomphsh no more 
than to invite superior minds to the prosecution of a 
plan so imperfectly commenced, although it is not all 
that I desire, it is perhaps more than I have reason- 
ably the right to expect. But, as to succeed where suc- 
cess cannot possibly be doubtful, confers no honor on 
any man, — so to fail, honestly to fail, in a just enterprise 
where there is but little chance of success, reflects no 
disgrace; but to discharge our duties fearlessly and 
faithfully, in the various relations of life in which we 
may be engaged, is man's highest, and should be, man's 
proudest praise. 

After acknowledging our grateful obHgation to the 
patrons of the " Forum," and to all those who have 
contributed to enliance its interest and value, we 
may be allowed to say, that this work is entirely pro- 
fessional. That it is not intended as a finished specimen 
of fine writing or literary taste. — In these respects, no 
one can think less of it than the author. The short time 
given to its preparation, — the business uiterruption to 
which it has been subjected in its progress, aU forbid 
the hope of its meeting the entire approbation of those 
for whom it was principally designed — we, however, 



CXXXiv INTRODUCTION. 

offer no other excuse for its many defects, than the 
assurance of our deep and lasting attachment to our 
brethren of the Bar — and the " Conscripts Fathers" of 
the Bench — and of our having undertaken the book in 
order that we may all live united in the memory of 
others, when our earthly connexion is at an end. 



THE FORUM. 



CHAPTER I. 

FORENSIC ELOQUENCE— ANCIENT AND MODERN; WITH ILLUSTRATIONS. 

It is obviously proper, if not necessary, before we 
enter upon the subject of Ancient and Modern Elo- 
quence, to bestow a hasty retrospect upon the condi- 
tion of jurisprudence — ^if it may so be called — in the 
earlier ages. In doing tliis, we cannot but be surprised 
at the power and ascendency which Grrecian and Roman 
oratory has always held in the estimation of the entire 
world. This must certainly have arisen rather from 
their popular harangues upon great national ques- 
tions, in tunes of public excitement and peril, than 
from any forensic effort, at least so far as from the 
memorials of their professional lives, we are enabled to 
judge. 

The truth is, that all those speeches which have won 



236 THE FORUM. 

the world's admiration and applause, were written — 
and some of tliem never delivered, and what is still 
worse, chiefly written after the trial had been con- 
cluded. Neither Demosthenes nor Cicero ever pro- 
nounced one half of the speeches that have been 
handed down to us, and which have been the subjects 
of eulogy from orators, historians and poets, for thou- 
sands of years. We judge rather of their value from 
the effects which they are said to have produced, and 
from the impressions left by our course of classical 
instruction, to say nothing of the reverence with which 
the memory ever surrounds the tradition of departed 
greatness. 

This system of writing speeches, which was intro- 
duced by Pericles, and especially recommended by 
Cicero, may cause them to appear to more advantage 
with posterity, but must have taken much from their 
effectiveness upon their auditory, if the men of those 
days were constituted as are those of the present. 
No man now, even if he were able, could venture to 
imitate their example with any hope of success. The 
practice of delivering speeches previously written, is 
with us confined to tyros or neophytes of the pro- 
fession, who invariably abandon it, as soon as they are 
relieved from the timidity inseparable from youth and 
inexperience; and the less excusable practice of writ- 
ing speeches that never were delivered, to say the 
least of it, displays more vanity than honesty. 



FORENSIC ELOQUENCE. 137 

Few men will agree with the notion of Cicero, that 
written discourses are preferable, or more available, 
than those which are the result of close thought, and 
laborious and careful study; and dependent upon the 
immediate action of the mind and surrounding circum- 
stances for their dress and address. How is it possible 
that a coldly prepared speech, with an introduction (as 
sometimes happened,) taken, perhaps, for the twentieth 
time from a Liber Exordiarum, however able, can 
exercise such a power over a jury or a popular assem- 
bly, a« a speech full of original fire, animation, and 
passion; all springing in their freshness from a just 
knowledge and application of the subject and cha- 
racter of the occasion ; and the nature and disposition 
of those to whom it is addressed. A written dis- 
course gives you no idea of true oratory — no more 
than a lifeless eagle furnishes you with a just idea of 
the same bird, when cleaving the air in the pride and 
majesty of his strength. That which is written, ad- 
dresses its subject — that which is spoken, addresses 
its hearer. No man can infuse the passions into a 
written discourse — ^it is unnatural. No written speech, 
however passionate, glowing, and impressive in itself, 
can ever impart equal passion to the speaker, and 
certainly .not to the audience. It is necessarily de- 
ficient in that mental and physical action that is 
spoken of by Demosthenes. A jury is captivated and 
convinced by the warmth, energy, and sincerity of the 

VOL. I. — 10 



138 THE FORUM. 

advocate. There is an electrical commumcation and 
sympathy between speaker and hearer, that no one 
can describe, and which rarely can exist, where one 
acts upon memory and the other upon thought. 
What is intended to be grave and impressive, by a 
written discourse is often rendered light and ludicrous. 
We remember an instance of this sort — ^indeed instances 
are everywhere to be found. A lawyer who adopted 
Cicero's rule, of writing, presented himself before a 
jury upon an important case. If he had shared in the 
excitement as was natural, his memory would have 
been disturbed and he would probably have forgotten 
his speech — ^he therefore chastised and subdued himself, 
and proceeded coldly and deliberately to submit his 
views to the court and jury — when of a sudden, and 
most unexpectedly (for so it was written,) he burst 
forth, and exclaimed with an affectation of gi'eat fer- 
vor, '^^ But sirs, I grow loarmr The transition was too 
violent to be appreciated, and it was followed by a 
laugh from the entire auditory. 

As to the idea that writing will render the style 
more perfect, that may be ; but it will not render it 
more prosperous, and in truth it will retard, if not 
destroy, our advances towards perfection in extempo- 
rary speaking, which is the crowning glory. 

But in considering the ascendency of ancient orators, 
we have overlooked the judicial history of ancient 
States, which we must now briefly notice. In Eg^^t 



FORENSIC ELOQUENCE. ^39 

the judges consisted of thirty-one, including the pre- 
sident, who wore a gold chain suspended from his 
neck, bearing an image made of precious stones. 
This image was called Truth, and when the president 
put it on, the trial commenced. All the laws were in 
eight volumes, which lay before the judges, and the pro- 
ceedings were conducted in writing — paper books were 
furnished, but unattended by any oral argument, and 
the case was decided by the president's placing the image 
of Truth upon the statement and pleadmgs of that 
party in whose favor the court determined.* 

Whatever may have been the merits of their legal 
literature, the course of the proceedings could not 
have been productive of any great proficiency in elo- 
cution, nor does it appear from juridical history that 
the memory of their proceedings survived the age that 
witnessed them. They are therefore simply adverted 
to now, in order to a cursory chronological review of 
the origm and progress of courts of justice and the 
modification of practice, from the earliest ages down to 
the present time. 

Following Egypt m the order of time, and in some 
respects, as will be observed in the character of her 
legal proceedings, history next presents ancient Greece 
to our consideration. 

Although we have always ima^ned ourselves to be 
familiar with Grecian eloquence, and speak in rap- 

* Diodorus Siculus. 



140 THE FORUM. 

tures of Pericles, Demosthenes, and ^schines, the 
truth is, that out of Athens, " The Eye of Greece — the 
Queen of the Violet Crown," as she has been called, 
there was no oratory in any of the Grecian States ; 
and even in Athens, oratory was mostly confined to 
parties, or relations or friends of parties, who some- 
times wrote speeches on both sides and made a living 
by it. Many of the speeches of Demosthenes were 
never delivered by him, but by his clients. The popu- 
lace were paid for attending, so that it became a sort 
of trade. The dicasts or jurors were paid out of fines 
and forfeitures. They amounted annually to six thou- 
sand, and each received five oboli a day. They were 
divided into sections of five hundred, and sometimes 
all sat together. They were interested in convicting 
in criminal cases, as the fines were paid to them, or 
confiscation enriched the treasury. It is truly said 
by Hobbes, that the utility of an advocate depends 
upon the tribunals before wliich he appears. K they 
are corrupt or ignorant, liis efforts are impaired ; and 
Athens, we are told, was in so bad a condition in this 
respect, that Socrates, though innocent, disdained to 
make any defence against a charge which resulted in 
his death. 

Common informers, or sycophants, extorted money 
from the fears of parties, and nothing could be more 
corrupt or degrading, than the whole system of judicial 
proceedings. There could scarcely be said to be any 



FORENSIC ELOQUENCE. X41 

rules of evidence — hearsay testimony, common report, 
and dying declarations, without their modern safe- 
guards, were all received in evidence. The ostracimn of 
Aristides and the death of Socrates, are in short, fair 
specimens of the administration of the laws in this far- 
famed wonder and mistress of the world. 

There was one respect in which the rules of their 
courts somewhat resembled ours, in the Supreme Court, 
and it is not improbable that ours may have been de- 
rived from theu' classic example — the advocates were 
limited in their speeches to a given time, and that 
time was regulated or ascertained by a clepsydra, or 
water clock, which derived its name from Clepsydra, a 
famous fountain in Messinia. 

The clock, however, we are informed, was stopped 
during the time of the advocate's reading any docu- 
ments or books. This limitation accounts for what 
otherwise would appear strange, that in the reported 
speeches we not unfrequently find, that instead of 
the advocate referring to want of time, or to the limi- 
tation of time, he speaks of being out of water, or of 
leaving some part of his water for his colleague. 

This practice also obtained in Rome, to whom we 
now pass : — ^indeed, the Romans derived much of their 
learning, many of their virtues, and some of their 
vices, from the Greeks. Having subjugated Greece, 
the vassals became teachers, and instructed their vic- 
tors in philosophy, in poetry, and in oratory. 



142 '^H^ FORUM. 

Originally the kings of Rome presided at trials. 
After the expulsion of kings, the jurisdiction was 
exercised by the consuls, and subsequently by the 
praetors. 

The praetors were at first two : Praetor Urbanus and 
Praetor Pereginus; afterwards their number was in- 
creased, and in the time of Cicero there were twelve. 
They did not always hear the causes themselves, but 
were authorised to appoint judges, and when the praetor 
held the court he summoned to his assistance a num- 
ber of assessors, called judices, who were taken from 
the Centum-viral body. The trials were of four 
classes : Actiones Populares, Actiones Extraordinariae, 
Judicia Publica, and Judicia Populi.* 

The Romans spoke of all as orators, who accustomed 
themselves to pubhc speaking, either in popular assem- 
blages or courts of law. An eloquent speaker acquired 
an influence which placed all the honors of the State 
within his grasp : but he was not obliged to study the 
law before he entered into public life. He was bound 
to defend the rights of his clients, when attacked in a 
court of law, and was prohibited from accepting any 
fee. The term advocate, was not applied to a pleader 
until after the time of Cicero. Its true signification 
was a friend, and referred to those numerous persons 
who assembled in behalf of the respective parties. In 
the early ages the parties carried on the cause them- 

* Hortensius, page 90. 



FORENSIC ELOQUENCE. ]^43 

selves, with the aid of the Juris Consults, who were, 
what might be called, the Chamber Council. 

The Judices or Judges in Rome, combined the cha- 
racters of court and jury. They might modify or 
qualify the sentence — or even pardon — but theirs was 
the sole authority. They determined upon law and 
fact — often with but little knowledge of the former, 
and less regard for the latter. Artifice, management, 
and dramatic effect, often exercised most powerful in- 
fluence over the results of their investigations or trials. 
And the bolder, or in some cases the more submissive 
the defendant, the more secure he was of escape from 
condign punishment. Wounds were publicly exliibited 
in the forum — war-worn mantles or shields were pa- 
raded before the offender — former wealth or sendees — 
present poverty and imbecility — were freely worked 
into every case that would admit of it, for the purpose 
of screening an offender. And such schemes were not 
merely resorted to by the defendant, but were adopted 
from the lowest to the highest of the advocates. Cicero, 
who was above them all in talents, fairly rivalled them 
in the variety and ingenuity of his professional inven- 
tions to hoodwink justice, and substitute mawkish 
sympathy for the severe dignity of a judicial tribunal. 
We need not refer to the cases of Manlius, Acquilius. 
Phryne, Galba, and Fronteius. This, however, was not 
the worst feature m their jurisprudence ; the counsel 
for public, as well as private prosecutions, adopted a 



244 THE FORUM. 

similar course. Widows, whose husbands were alleged 
to have been murdered, in mourning robes and dissolved 
in tears, and rending the air with shrieks of agony, 
were introduced into the forum. Children, who had 
been defrauded, presented themselves with tearful eyes 
and upraised hands, praying for justice ; while the rags 
in which they were temporarily and artfully clothed 
for the occasion, lent irresistible force to their appeals.* 

But further — the advocates had no knowledge of the 
law, and what is worse, not unfrequently boasted of 
their ignorance. And this, perhaps, is their only 
excuse for substituting for legitimate argument, every 
sort of craft and contrivance that was likely to inveigle 
and secure victory, at the expense of the law and of 
justice, to say nothing of their assumed lofty character. 

As to the Prsetors and Judices, but little can be 
gathered from history that can be profitable or avail- 
able to legal science at the present day. They were 
not lawyers, nor familiar with the law. They derived 
their instruction from the opinions of the Juids 
Consults, and were not always very careful in the 
application of that instruction. There were no ex- 
ceptions, writs of error, or appeals from their deci- 
sions, and in the exercise of arbitrary power, they 
became sometimes regardless of the sacred principles 
of right, of which the law justly administered, is ever 
the best safeguard. They were political judges, de- 

* Hortensius, page 107. 



FORENSIC ELOQUENCE. 145 

pendent upon popular favor, often swayed by personal 
motives, or individual or party prejudices; and still 
more frequently governed rather by the exigency of 
the times than the principles of justice. The passions 
exercised greater influence upon their deliberations 
and judgments, than the merits of the controversies 
that they were called upon to determine. 

The advocates of those times of course conformed their 
addresses to the spirit of the times, and the nature of 
their tribunals. Rhetoric took the place of logic, and 
sheer sophistry not unfrequently usurped the place of 
both. With but rare exceptions, there were no scien- 
tific lawyers among them. They encountered immense 
labour, it is true, but it was not in devotion to the sci- 
ence of jurisprudence, but in the cultivation of a know- 
ledge of general science, and more especially the arts 
and refinements of oratory. Lawyers such as Scsevolo 
and Sulpicius, occupied a lofty, but still subordinate 
sphere of life. They were to the orators what attorneys 
and special pleaders are to the barristers in England. 
They appeared in the "atrium" daily, but rarely spoke 
in a case, and when they did, were almost invariably 
defeated in their causes, as might be supposed, as the 
value of their learning was beyond the appreciation of 
the Judices ; and their want of accomplishment in the 
beauties and blandishments of oratory, was turned into 
ridicule, or treated with contempt, by those who had 
o-iven their whole lives to the most sedulous study of 



146 THE FORUM. 

eloquence. Even Cicero himself, tliough at times lie 
prides himself upon his legal knowledge, affects to 
scorn them, when in the defence of Murena, he says, 
" If you put me upon my mettle, overwhelmed with 
business as I am, I will in three days declare myself a 
juris consult." 

But, suspending this hasty survey, or rather glance, 
at the ancient forms of justice, and the modes and 
morals of advocacy — to both of which we may again 
incidentally refer — ^let us pass from the Roman Repub- 
lic, which was destroyed before the Christian era, to 
the time of Quintillian, who was born during the 
reign of Nero. QuintiUian was a great adnmer of 
Cicero, and became one of the most distinguished rheto- 
ricians of the age in which he lived. The Augustan 
age which, havmg formed the interval betweeen Cicero 
and Quintillian, was more celebrated for its learning, 
its historians, and its poets, than its orators. Freedom 
of speech dwindled for a time into comparative msigni- 
ficance, and almost perished under the blighting power 
and influence of royalty ; still, like the dying day, it 
gave some of its brightest flashes in its exphing mo- 
ments. 

Quintilhan, who died at about the age of fourscore, in 
the one hundred and twentieth j^ear of the Chi'istian 
era, though an inferior orator to Cicero, was a superior 
teacher, and liis " Institutes of Oratofvy" contain more 
practical instruction than any, or all the other works 



FORENSIC ELOQUENCE. ^47 

upon that subject that have been handed down to 
us. He wrote with great beauty, purity, and power ; 
and unlike his prototype, he inculcated the advantages 
of improving the faculty of extemporary speech, and 
recommended a thorough general preparation for an 
argument, in preference to the course theretofore too 
much in use, of directing the mind to just so much 
law, as might be deemed necessary for the occasion. 
He was a devotee to his profession, and although he 
withdrew from its more active pursuits after the loss 
of his wife and children, he continued the instruction 
of others, and composed, as history informs us, many 
orations in his retu-ement, which equalled in classic 
beauty, the best productions of the Augustan age; 
and perhaps we cannot do better than borrow from 
him a sentence — strongly expressed, it is true — as in- 
troductory to our imperfect views, upon the present 
subject : 

" May I perish," says Quintillian, " if the all-power- 
ful Creator of nature and Arcliitect of this world, has 
impressed man wdth any character which so eminently 
distinguishes him from other animals, as the faculty of 
speech. When nature has denied expression to man, 
how very little do all his boasted divine qualities avail 
him." Tliis plainly refers, not to the mere natural or 
abstract faculty, but to the improvement and refine- 
ment of which it is capable, and the tremendous power 
which, when highly improved and refined, it exercises 



148 THE FORUM. 

over the condition and worldly destiny of men. 
Rightly understood, it is far superior in its influence, 
to that mighty and fearful engine, the press ; it swayed 
nations before the press was known. It attracts, sus- 
tains, and controls men and empires at pleasure ; wield- 
ing, at will, the fierce democracy. " It is beautiful as 
Tu-zah, comely as Jerusalem, terrible as an army with 
banners." 

Speech alone, can successfully contend with types — 
for nearly fifty years, until very recently, no general 
war has distracted Christendom, and the voice of the 
world is still for peace. Yet one inspired and accom- 
plished orator, of himself, without the influence of 
bu'th or fortune, or any external aid — drawing only 
upon his own intellectual resources, shaU confront the 
press, raise and queU armies at pleasure, stand forth 
unblenching in the full blaze of royalty ; govern whole 
nations, and enchant while he governs, and convince a 
rapturous and astonished world, that there is no aris- 
tocracy so supreme and unquestionable as the aristo- 
cracy of speech. It is at once the pride of peace, and 
the terror of war. 

^ ■ "It rides upon the zephyr's wing, 

Or thunders in the storm." 

The eloquence thus spoken of, is the perfection of 
speech. With us, it must be said, to be of rare attain- 



FORENSIC ELOQUENCE. ' 149 

ment ; indeed, the whole world, through its countless 
ages, has furnished but few distinguished orators, 
though in every other department of art and science, 
it has been comparatively munificent. The reason of 
this is, that the faculty has not been studiously and 
laboriously improved. Rhetoric and logic, it is true, 
are branches of our systems of education, but they are 
abandoned when scarcely begun, instead of being prose- 
cuted to those glorious results, which amaze, exalt, or 
subdue mankind. 

With us, eloquence in one sense, may be said to be 
spontaneous with the whole people ; but it partakes, 
in some respects, of a savage character — ^it is what is 
usually termed natural eloquence, wild as the prairie, 
and rough as the unpolished and encrusted diamond — 
" Satis loquentia, eloquentia parum." 

Nature and fortune have been so bountiful, so pro- 
digal to this country, as to render us apparently indif- 
ferent to all adventitious aid. As a man of great 
innate powers sometimes triumphs over the want of 
education, and wrests, by inherent strength, the laurels 
from the brow of the orator, the philosopher, or the 
sage ; so America, a youthful giant, in the confidence of 
her own energy, is too apt to despise all considerations 
of symmetry, or of grace ; of skill, or of beauty. The 
sun, in his wide career, never shone upon a people 
possessed of greater resources, of more abundant capa- 
city for improvement; and so far as regards the present 



250 THE FORUM. 

subject, never witnessed capacities and resources less 
advantageously employed. 

Travellers report us truly — ^let it not be disguised — 
as a money-making, money-loving people ; and it would 
be well, if, instead of being restless under the charge — 
wbich derives its chief severity from its truth — our 
attention were directed to the reform of the evil. 
Once seriously attempted, and the work is half accom- 
pHshed ', every successive step shall be easier than the 
past; and the mind — ^the immortal part of man — ha^Tng 
escaped from the sordid thraldom of the pocket, shall 
indulge in a store of endless moral and intellectual 
riches, not, perhaps, the less dehghtful, for having 
hitherto been unknown. 

Liberty is ever essential to eloquence; it camiot 
spring or bloom in a land of slaves ; but liberty alone 
is insufficient; civilization and cultivation must coincide 
with it. Liberty is the soU, and a fruitful soil, but 
refinement is the culture. Liberty may be said to be 
the body, but refinement is the symmetry ; the soul — 
the grace, the celestial impress of that body, without 
which, the features and limbs of Apollo, would be 
objects of contempt, rather than admiration. As it is 
not individual liberty that we speak of, neither is it 
individual refinement. We refer to national hberty — 
national refinement — which first fan the latent, heaven- 
born spark of genius into a flame, and then supply the 
care that feeds it, and prevents its extinguishment. 



FORENSIC ELOQUENCE. , ]^5]_ 

So true it is, as was beautifully remarked by Longinus, 
" that liberty is the nurse of eloquence. It animates the 
spirit, and invigorates the hopes of men; excites honor- 
able emulation, and a desire of excelling in every 
art. AU other quahfications you may find among 
those who are deprived of liberty; but never — never 
did a slave become an orator! He can only be a 
pompous flatterer ; his spirit being effectually broken, 
the timorous vassal will still be uppermost. The habit 
of subjection overawes and beats down his genius." 

" Jove fixed it certain, that whatever day 
Makes man a slave, takes half his worth away." 

But while freedom, it is true, is requisite to the full 
development of the powers of speech, let it still be 
remembered, that an orator is chiefly created by him- 
self. Without self-creation, no chance can avail him. 
The efforts made by Demosthenes to overcome the 
difficulties of articulation, and his personal and habitual 
defects, were more than equal to the accumulated labor 
bestowed upon the attainment of this divine art, from 
the time of Quintillian down to that of Chatham. 
TuUy also, exhausted aU the sources of improvement 
that Rome or Greece could supply ; he was instructed 
by the first masters m philosophy, in the sciences and 
the arts, and for the purpose of perfecting himself in 
the blandishments and beauties of eloquence, he de- 



152 THE FORUM. - 

A'oted many years of his life to an intellectual inter- 
course with the most gifted and distinguished women 
of the age — CorneHa and others, — and he tell us, that 
the Gracchi, who became- distinguished speakers, were 
educated " Non tam in gremio, quam in sermone ma- 
trisi" Thus was acquired that flexibility, softness and 
sweetness of expression, which could not so well have 
been derived from any other instruction. 

Among the Romans, children even, were taught to 
speak the language purely at first, by allo^ving them to 
hear nothing but the best phrases; and it is said of 
Curio — considered among the first class of orators in 
his time — ^that he understood no poet ; had read no 
books on eloquence, and had scarcely any knowledge 
of the law. The only thmg which secured his emi- 
nence and applause, was his correctness and beauty of 
speech, quickness of apprehension, and great fluency of 
expression. The attention of every child, and the hopes 
of every parent, seemed to be directed to the forum, 
whence they expected the highest honors and prefer- 
ments. 

Demosthenes became a rival in fame to Homer ; 
Cicero to Virgil ; for the industry and devotion of the 
Orators were equal to those of the Poets. But Milton 
shall be remembered, when Chatham is forgotten. This 
is not to be attributed to any natural inferiority of the 
British statesman, but to an inferiority in labor in 
acquiring the great accompUshment, as well as to the 



FORENSIC ELOQUENCE. 153 

want of due appreciation by the age in which he lived, 
and by that which has succeeded. 

The supineness of men, which leads them to hve 
idly and indulge their animal appetites, preferring bond- 
age in ease, to strenuous liberty, has superadded con- 
tumely to neglect. The art of speech, therefore, is 
degraded, instead of receiving encouragement ; and no 
one is willing to toil, when the reward is to be public 
odium, indifference, or contempt. Hence it is, that 
repubhcan antiquity leaves us so far behind in this 
immortal race. To say nothing of those great Grecian 
and Roman models already adverted to, Pliny and 
other cotemporaneous historians, mention numerous 
instances of men of the most powerful minds, who 
had been engaged in the study of oratory for nearly 
half a century, without deeming themselves fully 
quahfied to venture a pubhc harangue upon any im- 
portant occasion. Since the time of Pliny, no devo- 
tion Mke this has been known to the world ; and there- 
fore no results comparable to those of former ages, 
could reasonably be anticipated. Pitt, Fox, Whitfield. 
Wesley, Erskine, Curran and Grattan, rendered them- 
selves illustrious by theu' comparative superiority, when 
considered with reference to others of their own times, 
who were engaged in parliamentary, clerical, or foren- 
sic duties. Oratory with them, however, was but an 
incident, and not the great study of their lives. And, 
as it was an incidental pursuit, it was attended only 

VOL. I. — 11 



254 '^HE FORUM. 

by incidental fame. The few years that Iiave rolled 
by, since they performed so prominent a part on the 
world's stage, have almost obliterated the recollection 
of their temporary and transitory glory. 

The only reasons for the lamentable deterioration of 
modern times, are want of leave, and want of labor ; 
men will die for immortality, but they will not live for 
it ; they will encounter sudden and violent death, but 
they will not submit to a laborious and devoted life. 

The present is an era of opportunity, without the 
will to embrace it. Let the inclination but once truly 
manifest itself — the result is not to be doubted. Let 
us begin to-day where we ended yesterday, and stead- 
fastly pursue our object, with incessant study, and 
with ardor, self-denial and confidence, in the pursuit. 
Let us apply ourselves to the neglected art of speech, 
as we would to divinity, law, medicine, poetry, paint- 
ing, sculpture, even commerce, and our orators shall 
be as conspicuous as the professors of any of those 
sciences, or any of those arts. Let us build daily and 
hourly upon our coUegiate foundation, instead of aban- 
doning it to premature and cureless decay. 

A life devoted to study, and especially such study, 
is a life of pleasure, of deserved distmction, of lucra- 
tive acquisition, of transcendent power. Labor, in 
some sphere, is the lot of man, but it is at the same 
time, rightly viewed, the delight of man ; the source 
and sweetener of the highest and noblest social enjoy- 



FORENSIC ELOQUENCE. ■ ]^55 

ments. To the student of oratory, those enjoyments 
are indeed most precious and most necessary; they 
are aids to his advancement. The fine arts, polite 
literature — in short, all the graces and the muses, are 
tributary to his formation and success. They may all 
be wooed and won by labor, and without labor, they 
will all assuredly be lost. Incessant study loses its 
fancied severity, by being universal or various. Mental 
exercise and mental health are perfected by diffusion, 
as well as concentration ; and this remark is peculiarly 
appropriate, as applied to oratory, y 

The mind of the orator should be directed to history, 
poetry, music, painting and sculpture, in order, in the 
language of Cicero, that he may comprehend that in- 
tellectual relation, that secret charm in the liberal pro- 
fessions, which connecting one with another, combines 
the influence and powers of all. 

Oratory is distinguished, because, while it requires, 
it implies extensive knowledge. It is a mistake to 
suppose, as has been too frequently suggested, that 
accomplishment in speaking indicates a want of accom- 
plishment in thought. As, for instance, that a great 
speaker cannot be a great statesman, a great lawyer, 
or an eminent divine. This is one of the absurdities 
and slanders of the day. In truth, a great statesman, 
lawyer or divine, must be a great speaker. What were 
Scsevoli and Sulpicus to Cicero and Hortensius ? Chatham 
and Mansfield were the greatest statesmen of their time. 



256 THE FORUM. 

Lord Chesterfield, in writing to his son, says of 
them : '' They are, beyond comparison, the best speak- 
ers; Why? Only because they are the best orators. 
They alone, can inflame or quiet the House — ^they 
alone, are attended to, in that numerous and noisy 
assembly, so that you might hear a pin fall while either 
of them is speaking. Is it that their matter is better. 
or their argument stronger, than other people ? Does 
the House expect extraordinary mformation from them? 
Not in the least — but the House expects pleasure from 
them, and therefore attends — -finds it, and therefore 
approves. Take my word for it, that success turns 
more upon manner than matter." 

Marshall, Brougham, and Dupin, were the greatest 
lawyers of their respective countries, yet their talents 
for speech secured them more fame, fortune and pro- 
motion, than without it, all their law learning could 
ever have acquired. This is readily understood — a 
man who cannot speak, or who speaks unintelhgibly. 
(whatever may be his knowledge,) thinks for himself. 
A speaker, thinks for thousands, by making thousands 
think as he does. An eloquent writer is better for the 
future — an eloquent speaker better for the present ; 
the laurels of the former cluster round his grave, those 
of the latter encircle his brows. One is a draft on 
time, the other at sight. Writing improves more — 
speaking delights and convinces more. One who deals 
in substantives, is much stronger than one who deals 



FORENSIC ELOQUENCE. 157 

in adjectives. The former gives you a variety of 
matter, the latter often only a variety of qualities, of a 
single matter. 

The advocate, compared to a mere lawyer, is "Hy- 
perion to a Satyr." His power and his glory pervade 
the whole realm. The lawyer is very well in certain 
limits, and in a certain way, and with certain men ; 
but the orator is confined to no place — no occasion 
: — no men; but is conspicuous in all, and with all. 
In private, as well as in public — at the forum, or at 
the banquet ; surrounded by listening senates, or en- 
compassed by the social cu-cle, eloquence is still supreme. 

" 'TIs musical 
As bright Apollo's lute, strung with his hair !" 

By eloquence, we do not mean mere fluency — much 
less, flippancy. Yet words are not to be despised or 
undervalued. "Words, fitly spoken, are like apples of 
gold in pictures of silver." The perfect master of lan- 
guage, has achieved half the work of an orator, and the 
best half, too. The weapons in his armory are com- 
plete; they are of the "ice-brook's temper," and all that 
is required is the courage, and skiU, and judgment to 
use them. 

No man can be perfect in any language, without 
being, to a great extent, necessarily familiar with the 
knowledge which that language was designed and cal- 
culated to convey. Those egregiously err, who consi- 



258 THE FORUM. 

der language the first stage of a progress : in otlier 
words, that it is to the orator, what it may he said to 
he to the infant. It is the very last thing attained, if, 
indeed, it ever be perfectly attained : and it is the 
gloss, the embellishment, the introduction, the recom- 
mendation of every thing else. You have probably 
known many great men without it; — you certainly 
never knew a man with it, who was not great. It is 
possessed by few, desired by many, and envied by all". 
Eloquence consists, it is true, more in the harmoni- 
ous structure of thought, and in the depth and subli- 
mity of feehng, than in the adoption of measured lan- 
guage, the manufactu]"e of phrases, or the graceful fall 
of well-turned periods. Those who bestow more atten- 
tion upon words than upon reason and sentiment, never 
yet were, and never can be eloquent ; they are n^re 
tuners of accents ; and either speak holHday, or make 
fritters of the King's English. ,"' "Like the screech-owl — 
they are all noise and feather, without flesh or blood." 
( "Words, nevertheless, are the apparel of thought. It is 
by no means necessary to a distinguished man, that his 
dress should be studiously considered, and nicely ad- 
justed; but still, a proper regard to decency of exterior, 
as evincing a becoming respect to the taste and opinions 
of others, may contribute to enlarge the sphere of his 
usefulness, and to recommend him to those portions of 
society, whose perspicacity never enabled them to dis- 
cover virtue in poverty, or genius in rags. ) 



FORENSIC ELOQUENCE. 159 

With tliis understanding, then, words may he said to 
he things — and most important things — as connected 
with our present subject; a sort of letter of introduction, 
or passport from heart to heart, obtaining access for more 
valuable and less perishable impressions. A blush has 
been called the color of innocence : to the eye of the 
superficial observer, the contemplation of external signs 
is the least painful and most important ; and if these 
shall result in finally attracting attention to the inward 
man, even in the estimation of divine pliilosophy, they 
are not to be utterly despised. If some modern ora- 
tors — ^these tritons of the minnows — should monster 
their nothings, or fastidiously decorate and bedizen the 
puny and sickly offsprings of their brain in embroidery 
and brocade, and thereb}^ introduce them like shallow 
;3feps, into the best society, great men may derive in- 
struction from their folly, and profit by their example. 
It is the privilege of philosophy, to derive benefit from 
the weakness as well as from the wisdom of others. 

I differ, toto c8b1o, therefore, from those who under- 
rate the beauties, and blandishments, and graces of 
oratory. Cicero is a shining instance of the correctness 
of the doctrine now contended for. Aware of the im- 
portance of language, the chief of his life, as has been 
said, was devoted to its study. Inferior, undoubtedly, 
to Demosthenes, in force of thought and character, yet 
was he a more finished orator. The arrangement of 
his sentences was more perfect, his language more 



IQQ THE FORUM. 

select ; but in action, as well as in matter, no man can 
carefully read the discourses of those great masters, 
without acknowledging the supremacy of the Greek. 
The oratory of Cicero may be compared to a majestic 
river, gKding through mount, and vale, and plain, and 
reflecting from its broad and tranquil bosom, the flowers, 
and the foliage, the smiling villages and stately cities 
that decorate its shores ; while it exhibits the beauties 
of the bright cerulean, and sparkles in. the rays of the 
o'erhanging firmament. That of Demosthenes, on the 
contrary, resembles the mighty ocean, dark, deep, and 
terrible — now fanned by the gentle zephyrs, and now 
lashed and chafed by the storm — now smooth and un- 
ruffled, as ere winds began to blow; and now foaming 
and directing its rage, as it were, even against high 
heaven itself — theirs was the difference between beauty 
and sublimity; between symmetry and strength; be- 
tween Apollo and Hercules. 

Character does not depend more upon opiaion, than 
opinion upon character; when, therefore, inquired of, 
what were the chief qualities of an orator, the great 
Grecian master replied " action;" — and the world shall 
witness that he was right. It embraces and enforces 
every tiling. No man of imbecile mind, feebleness of 
conception, poverty of language, or coldness of heart, 
can possibly be possessed of action. We do not un- 
derstand by action, gesticulation, or attempt at dra- 
matic effect ; but that adaptation, or conformity of the 



FORENSIC ELOQUENCE. 161 

graces and powers of body and mind, which shows that 
the whole soul is enlisted in the cause. In homespun 
phrase, it means to be in earnest ; to appear to believe 
and feel yourself, what you deske to induce others to 
believe and feel. In an ancient work, " The Reliques 
of Literature," is contained a quaint expression of 
opinion, illustrative of this subject, which is not un- 
worthy of regard, as it contains most valuable and 
appropriate instruction. 

" Cicero and Roscius," says the author referred to, 
''' are most complete, when they both make but one 
man. He answered well, that after often asking, said 
still, that action was the chiefest part of an orator. 
Surely, the oration is most powerful when the tongue 
is diffusive, and speaks in a native decency even in 
every limb. A good orator should pierce the ear, 
allure the eye, and invade the mind of his hearer; and 
this is Seneca's opinion : ' Fit words are better than 
fine ones.' I like not those that are injudiciously 
made, but such as are expressively significant; that 
lead the mind to something beside the naked turn; 
(and he that speaks thus, must not look to speak thus 
every day.) Words are not all — matter is not aU — 
nor gesture; yet together, they are. 'Tis much moving 
in an orator, when the soul seems to speak as well as 
the tongue. TuUy, we are told, was admu^ed more 
for his tongue than his mind. Aristotle, more for his 
mind than his tongue ; but Plato for both. And surely. 



162 THE FORUM. 

nothing decks an oration more, than a judgment Tvell 
able to conceive and to utter. I know God hath chosen 
by weak things to confound . the wise ; yet even the 
Scriptures are penned in a tongue of deep expression, 
wherein almost every word hath a metaphorical sense, 
which doth illustrate by some illusion." 

"How political is Moses in his Pentateuch! How 
philosophical is Job ! How massive and sententious 
is Solomon in his proverbs ! How quaint, and flam- 
ingiy amorous in the Canticles ! How grave and 
solemn in his Ecclesiastes ! How eloquent a pleader 
is Paul at the bar — ^in disputation how subtle ! — and 
he that reads the Fathers, shall find them as if written 
with a crisped pen. Nor is it such a fault as some 
would make it, now and then to let a philosopher or a 
poet come in and wait, and give a trencher to this ban- 
quet ; St. Paul is a precedent for it. I wish no man 
to be too dark, and full of shadow. There is a way to 
be pleasingly plain, and some have found it. Nor wish 
I any man to totally neglect his hearers. Some sto- 
machs rise at sweet-meats ! He prodigals a mind of 
excellency, that lavishes a terse oration upon a feeble 
auditory. Mercury, himself, may move his tongue in 
vain, if he has none to hear him but the non-intelli- 
gent. They that speak to cliildren, assume a pretty 
lisping. Birds are caught by the counterfeit of thek 
own shrill notes. There is a magic in the tongue, can 
charm the wild man's motions. Eloquence is a bridle, 



FORENSIC ELOQUENCE. 163 

wherewith a wise man rides the monster of the world 
—the People !" 

Plato defines eloquence to be the art of ruling the 
minds of men, and moving the passions and affections 
of the soul, which, like .so many strings in a musical 
instrument, require the touch of a masterly and deli- 
cate hand. Hamlet furnishes a beautiful and forcible 
illustration of this view, in his reflections, upon the 
rehearsal by the players : — 



" Is it not monstrous that this player here, 
But in a fiction — iu a dream of passion, 
Can force his soul so to his own conceit, 
That from her workings, all his visage wans — 
Tears in his eyes — distraction in his aspect — 
A broken voice — and his whole functions suiting, 
With forms to his conceit — and all for nothing ! 
For Hecuba ! 

What's Hecuba to him, or he to Hecuba, 
That he should weep for her ? What would he do, 
Had he the motive, or the cue for passion 
That I have ? He would drown the stage with tears, 
And cleave the general ear with horrid speech ; 
Make mad the guilty, and appal the free ; 
Confound the ignorant, and amaze, indeed. 
The very faculties of eyes and ears !" 



'' The highest order of eloquence," says Blair, " is 
always the offspring of passions. A man may con- 
vince, and even persuade others to act,^ by mere reason 
and argument; but that degree of eloquence which 



154 THE FORUM. 

gains the admiration of mankind, and properly consti- 
tutes one an orator, is never found without warmth or 
passion. Passion, when in such a degree as to arouse 
and enkindle the mind, without throwing it out of the 
possession of itself, is universally found to exalt all 
the human powers. It renders the mind infinitely 
more enlightened, more penetrating, more vigorous and 
masterly, than in its calmer moments. A man actu- 
ated by a strong passion, becomes much gTeater than 
he is at other times ; he is conscious of more strength 
and force; he utters greater sentiments, conceives 
higher designs, and executes them with a boldness and 
fehcity, of which, on other occasions, he would think 
himself utterly incapable." 

But we have higher authority than Quintillian, 
Cicero, Demosthenes, Plato, the Stagyrite, or any 
other worldly testimony, in support of the importance 
of eloquence. Authority that can neither be denied 
nor questioned. The High and Mighty One, in whose 
divine government mkacles are only resorted to for 
mu^aculous purposes, and who, even m his omnipotence, 
submits to his own just laws, substitutes Aaron for 
Moses, simply because he was more richly gifted with 
the power of persuasion. 

You will pardon me, for calling your attention to 
that passage of Holy Writ, upon which I reverentially 
rely for the proof of this position. To all, it is no 
doubt familiar, but may still be new in its present ap- 



FORENSIC ELOQUENCE. ' ^^5 

plication. I refer to portions of the third and fourth 
chapters of Exodus : 

" And God said unto Moses, I Am, that I Am. And 
thus shalt thou say unto the children of Israel, I Am 
hath sent me. 

" And Moses said unto the Lord, my Lord, I am 
not eloquent, neither heretofore, nor since thou hast 
spoken to thy servant ; but I am slow of speech, and 
slow of tongue. 

"And the anger of the Lord was kindled against 
Moses, and he said, is not Aaron the Levite, thy bro- 
ther ? I know that he can speak well, and thou shalt 
speak unto him, and put words in his mouth, and I 
will be with thy mouth and his mouth, and teach you 
what ye shall do. 

" And he shall be thy spokesman unto the people, 
and he shall be to thee instead of a mouth, and thou 
shalt be to him instead of God." 

During the speech of Patrick Henry upon the sub- 
ject of British taxation and aggi^ession, we are informed 
that in a transport of passion he tore off his w^ig, and 
in suddenly attempting to replace it, put it the wrong- 
side foremost. We may well laugh at the cold descrip- 
tion of the occurrence, when the perilous occasion has 
gone by; but wigs were no laughing matters, when 
heads were in danger. This incident was ridiculous 
enough, it is true, but its farcical character was lost 
sight of in the excitement of the orator, the importance 



IQQ THE FORUM, 

of the occasion, and the deep tone of feeling which it 
was calculated to produce. It was, no doubt, much 
more effective than the artifice of Burke, who, while 
speaking upon the French Revolution, coldly and deli- 
berately drew from his breast a glittering dagger, which 
he had there deposited for the purpose of dramatic effect, 
and which led to the shrewd and facetious inquiry of 
Sheridan, "Well, sir, you have brought the knife, but 
where is the fork ?" One of these occurrences was the 
result of passion, the other was art ; and art of the 
worst kind, for it was insufficient for its own conceal- 
ment. 

Gesture, generally, I know is denominated action ; 
but we can readily conceive of great action without 
any gesture ; physical, without mental action, is absuixl 
and contemptible. School boys, or mere sciohsts, are 
rarely deficient in gesture; but they fail in mental 
fervor — "in forcing the soul to then' own conceit." 
The speech of Demosthenes agamst Philip, is full of 
action; so is that of Cicero against Cataline; and in 
this respect, the brilhant harangue of Lord Chatham 
upon employing the Indians in the American war. 
which is so familiar to us all, is not inferior to either. 
No man can read those productions, without being 
assured that their authors were filled with the true 
Promethean fire. 

We can, of com^se, furnish but brief extracts of 
speeches, as illustrative of our text, but even those 



FORENSIC ELOQUENCE. 267 

may serve to direct renewed attention to the entire 
speeches referred to, and thereby obviate all occa- 
sion for commentary, as they sufficiently speak for 
themselves. We must be excused, if, in the first place, 
we introduce brief quotations from the famous Greek 
and Roman orators, in order that they may be com- 
pared with those of the distinguished men of our days 
— abroad and at home — which shall be presented in 
their turn. 



Feroration. Philippic of Demosthenes, after describing the ancestry of 
the Athenians : — 

" Such, men of Athens, were your ancestors ; so glorious in the 
eye of the world ; so bountiful and munificent to their country; so 
sparing, so modest, so self-denying to themselves. What resemblance 
can we find in the present generation, of these great men ? At a 
time when your ancient competitors have left you a clear stao'e; 
when the Lacedemonians are disabled; the Thebans employed in 
troubles of their own ; when no other state whatever is in a condi- 
tion to rival or molest you ; in short, when you are at full liberty ; 
when you have the opportunity and the power to become once more 
the sole arbiters cff Greece ; you permit, patiently, whole province? 
to be wrested from you ; you lavish the public money in scandalous 
and obscure uses ; you suifer your allies to perish in time of peace, 
whom you preserved in time of war ; and to sum up all, you your- 
selves, by your mercenary court, and servile resignation to the 
will and pleasure of designing, insidious leaders, abet, encourase 
and strengthen the most dangerous and formidable of your enemies. 
Yes, Athenians, I repeat it, you yourselves, are the contrivers of your 
own ruin. Lives there a man who has confidence enough to deny it ? 



268 THE FORUM. 

Let him arise and assign, if he can, any other cause of the success and 
prosperity of Philip. ' But,' you reply, 'what Athens may have lost 
in reputation abroad, she has gained in splendor at home. Was 
there ever a greater appearance of prosperity ? A greater face of 
plenty? Is not the city enlarged ? Are not the streets better paved, 
houses repaired and beautified?' Away with such trifles; shall I 
be paid with counters ? An old square new vamped up ! A foun- 
tain! An aqueduct! Are these acquisitions to brag of? Cast 
your eye upon the magistrate, under whose ministry you boast these 
precious improvements. Behold the despicable creature, raised, all 
at once, from dirt to opulence; from the lowest obscurity to the 
highest honors. Have not some of these upstarts built private 
houses and seats, vieing with the most sumptuous of our public 
palaces ? And how have their fortunes and their power increased, 
but as the commonwealth has been ruined and impoverished ? 

" To what are we to impute these disorders? And to what cause 
assign the decay of a state, so powerful and flourishing in past times? 
The reason is plain — the servant is now become the master. The 
magistrate was then subservient to the people; punishments and 
rewards were properties of the people ; all honors, dignities and pre- 
ferments, were disposed by the voice and favour of the people ; but 
the magistrate now has usurped the right of the people, and exer- 
cises an arbitrary authority over his ancient and natural lord. You, 
miserable people ! (the meanwhile without money, without fi-iends,) 
from being the ruler, are become the servant ; from being the mas- 
ter, the dependent ; happy that these governors, into whose hands 
you have thus resigned your own power, are so good and so gracious 
as to continue your poor allowance to see plays. 

"Believe me, Athenians, if recovering from this lethargy, you 
would assume the ancient freedom and spirit of your fathers ; if you 
would be your own soldiers and your own commanders, confiding no 
lono-er your afi'airs in foreign or mercenary hands; if you would 



FORENSIC ELOQUENCE. ^gQ 

charge yourselves with your own defence, employing abroad, for the 
public, what you waste in unprofitable pleasures at home ; the world 
might, once more, behold you making a figure worthy of Athenians. 
* You would have us, then, (you say,) do service in our armies, in 
our own persons ; and for so doing, you would have the pensions we 
receive, in time of peace, accepted as pay, in time of war. Is it 
thus we are to understand you?' Yes, Athenians, 'tis my plain 
meaning, I would make it a standing rule, that no person, great or 
little, should be the better for the public money, who should gnidge 
to employ it for the public service.' " 

Again : — 

"When, 0, my countrymen! when will you exert your vigor? 
When roused by some event ! When forced by some necessity ! 
What, then, are we to think of our present condition 1 To freemen, 
the disgrace attending on misconduct, is, in my opinion, the most 
urgent necessity. Or, say, is it your sole ambition to wander through 
the public places, each inquiring of the other, 'what new advices?' 
Can any thing be more new, than that a man of Macedon should 
conquer the Athenians, and give law to Greece ? Is Philip dead ? 
No, but in great danger. ' How are you concerned in those rumors? 
Suppose he should meet some fatal stroke, you .would soon raise up 
another Philip, if your interests are thus regarded. For it is not to 
his own strength, that he so much owes his elevation, as to our 
supineness.' " 

Peroration of Cicero for Mtio : — 

" On you, on you I call, ye heroes, who have lost so much blood 
in the service of jouv country ! To you, ye centurions, ye soldiers, 
I appeal, in this hour of danger to the best of men, and bravest of 

VOL. I. — 12 



170 



THE FORUM. 



citizens ! While you are looking on, while you stand here with arms 
in your hands, and guard this tribunal, shall virtue like this he 
expelled, exterminated, cast out with dishonor ? By the immortal 
gods, I wish (pardon me, my country ! for I fear, what I shall 
say, out of a pious regard for Milo, may he deemed impiety against 
thee,) that Clodius not only lived, hut were praetor, consul, dictator, 
rather than be witness to such a scene as this. Shall this man, then, 
who was born to save his country, die any where but in his country ? 
Shall he not, at least, die in the service of his country ? Will you 
retain the memorials of his gallant soul, and deny his body a grave 
in Italy ? Will any person give his voice for banishing a man from 
this city, whom every city on earth would be proud to receive within 
its walls ? Happy the country that shall receive him ! Ungrateftd 
this, if it shall banish him ! Wretched, if it should lose him ! But 
I must conclude — my tears will not allow me to proceed, and Milo 
forbids tears to be employed in his defence. You, my Lords, I beseech 
and adjure, that, in your decision, you would dare to act as you 
think. Trust me, your fortitude, your justice, your fidelity, will 
more especially be approved of by him, who, in his choice of 
judges, has raised to the bench, the bravest, the wisest, and the 
best of men." 

After describing the " rash levied numbers" of Cata- 
line, Cicero proceeds to contrast their character and 
condition, with those of the regular Roman army : — 

Secon&^^ation of Cicero against Catahne. 

" Against these gallant troops of your adversary, prepare, 
Romans, your garrisons and armies ; and first, to that battered and 
maimed gladiator, oppose your consuls and generals; next, against 
that outcast, miserable crew, lead forth the flower and strength of 



FORENSIC ELOQUENCE. ]_'rj_ 

all Italy. The walls of our colonies and free towns will easily resist 
the efforts of Cataline's rustic troops. But I ought not to run the 
parallel further, or compare your other resources, preparations and 
defences, to the indigence and nakedness of that robber. But if 
omitting all those advantages of which we are provided, and he des- 
titute — as the Senate, the Roman knights, the people, the city, the 
treasury, the public revenue, all Italy, all the provinces, foreign 
States — I say, if omitting all these, we only compare the contending 
parties between themselves, it will soon appear how very low our 
enemies are reduced. On the one side, modesty contends; on the 
other, petulance — here chastity, there pollution ; here integrity, there 
treachery ; here piety, there profanity ; here resolution, there rage ; 
here honor, there baseness ; here moderation, there unbridled licen- 
tiousness : in short, equity, temperance, fortitude, prudence, struggle 
with iniquity, luxury, cowardice and rashness ; every virtue with 
every vice. Lastly, the contest lies between wealth and indigence, 
sound and depraved reason, strength of understanding and frenzy; 
in fine, between well-grounded hope and the most absolute despair. 
In such a conflict and struggle as this — was even human aid to fail 
— will not the immortal gods enable such illustrious virtue to tri- 
umph over such complicated vice?" 

The speech over the dead body of Lucretia, ascribed 
by Livy to Junius Brutus, is for action, superior 
to either of those to which we have adverted. Though 
famihar, it is not the less appropriate te oui- purpose. 



* 



" Yes, noble lady, I swear by that blood which was once so pure, 
and which nothing but royal villany could have polluted, that I wiU 
pursue Lucius Tarquinius, the Proud, his wicked wife, and their chil- 
dren, with fire and sword ; nor will I ever suffer any of that family, 
or of any other family whatever, to reign King in Rome. — Ye gods, I 



272 THE FORUM. 

call you to witness this, my oath! — There, Romans, turn your eyes to 
that sad spectacle — the daughter of Lucretius — Collatinus' wife — 
she died by her own hand. See there ! a noble lady, whom the lust 
of a Tarquin reduced to the necessity of becoming her own execu- 
tioner, to attest her innocence. Hospitably entertained by her, as 
the kinsman of her husband, Sextus, her perfidious guest, became 
her brutal ravisher. The chaste, the generous Lucretia, could not 
survive the insult — glorious woman ! But once treated as a slave, 
she thought life no longer to be endured. Lucretia, as a woman, 
disdained life that depended on a tyrant's will, and shall we — shall 
men, with such an example before our eyes — and after five and 
twenty years of ignominious servitude — shall we, through a fear of 
dying, defer one single instant, to assert our liberty," &c. 

Lord Mansfield, on tlie Delays of Justice, hy the 'privilege of. Parliament, 

"J come now to speak upon what, indeed, I would have gladly 
avoided, had I not been particularly pointed at, for the part I have 
taken in this bill. It has been said, by a noble Lord on my left 
hand, that I likewise am running the race of popularity. If the 
noble Lord means by popularity, that applause- bestowed by after 
ages, on good and virtuous actions, I have long been stmggling in 
that race ; to what purpose, aU. trying time can alone determine ; 
but if the noble Lord means that mushroom popularity, that is raised 
without merit, and lost without a crime, he is much mistaken in his 
opinion. I defy the noble Lord to point out a single action of my 
life, where the popj^arity of the times ever had the smallest influ- 
ence on my deterra|»tious. I thank God, I have a more permanent 
and steady rule for my conduct — the dictates of my own breast. 
Those that have forgone that pleasing adviser, and given up the 
mind to be the slave of every popular impulse, I sincerely pity: I 
pity them still more, if their vanity leads them to mistake the shouts 
of a mob for the trumpet of fame. Experience might inform them, 



FORENSIC ELOQUENCE. ]^73 

that many who have been saluted with the huzzas of a crowd one 
day, have received their execrations the next ; and many, who, by 
the popularity of their times, have been held up as spotless patriots, 
have nevertheless appeared upon the historian's page, when ti'uth has 
triumplied over delusion, the assassins of Uberty. Why then, the 
noble Lord can think I am ambitious of present popularity, that 
echo of folly, and shadow of renown, I am at a loss to determine. 
Besides, I do not know that the bill now before your Lordships will 
be popular; it depends much upon the caprice of the day. It may 
not be popular to compel people to pay their debts ; and, in that 
case, the present must be a very unpopular bill. It may not be 
popular, neither, to take away any of the privileges of parliament : 
for I very well remember, and many of your Lordships may remem- 
ber, that not long ago, the poj^ular cry was for the extension of pri- 
vilege ; and so far did they carry it at that time, that it was said 
that the privilege protected members even in criminal actions ; nay, 
such was the power of popular prejudices over weak minds, that the 
very decisions of some of the courts were tinctured with that doc- 
trine. It was, undoubtedly, an abominable doctrine ; I thought so 
then, and think so still ; but nevertheless, it was a popular doctrine, 
and came immediately from those who were called the friends of 
liberty ; how deservedly, time will show. True liberty, in my opinion, 
can only exist when justice is equally administered to all ; to the 
king, and to the beggar. Where is the justice, then, or where is the 
law, that protects a member of parliament, more than any other 
man, from the punishment due to his crimes ? The laws of his 
country allow of no place, nor any employment, to be a sanctuary 
for crimes ; and where I have the honor tP sit as judge, neither 
royal favor, nor popular applause, shall ever protect the guilty." 



274 THE FORUM. 

Lord ChatJiani's speech in the British Parliament, in praise of the Con- 
gress at Philadelphia. 

" When your lordships look at the papers transmitted to us from 
America J when you consider their decency, firmness, and wisdom, 
you cannot but respect their cause, and wish to make it your own. 
For myself, I must declare and avow, that in all my reading and 
observation, (and it has been my favorite study; I have read Thu- 
cydides, and have studied and admired the master States of the 
world;) I say I must declare, that, for solidity of reasoning, force of 
sagacity, and wisdom of conclusion, under such a complication of 
difficult circumstances, no nation, or body of men, can stand in pre- 
ference to the general congress of Philadelphia. I trust it is obvious 
to your lordships, that all attempts to impose servitude upon such 
men, to establish despotism over such a mighty continental nation, 
must be vain, must be fatal. 

"We shall be forced, ultimately, to retract; let us retract while 
we can., not when we imist. I say we must necessarily undo these 
violent oppressive acts. They must be repealed. You will repeal 
them. I pledge myself for it, that you will in the end repeal them. 
I stake my reputation on it. I will consent to be taken for an idiot, 
if they are not finally repealed. 

"Avoid, then, this humiliating, disgraceful necessity. With a dig- 
nity becoming your exalted situation, make the first advances to eon- 
cord, to peace and happiness : for it is your true dignity to act with 
prudence and justice. That you should first concede, is obvious 
from sound and rational policy. Concession comes with better grace 
and more salutary effects from superior power ; it reconciles superi- 
ority of power with the feelings of men ; and establishes solid con- 
fidence on the foundations of affection and gratitude. 

" Every motive, therefore, of justice and of policy, of dignity and 
of prudence, urges you to allay the ferment in America, by a remo- 



FORENSIC ELOQUENCE. ^75 

val of your troops from Boston; by a repeal of your acts of parlia- 
ment ; and by demonstration of amicable dispositions towards your 
colonies. On the other hand, every danger and every hazard im- 
pend, to deter you from perseverance in your present ruinous mea- 
sures. Foreign war hanging over your heads by a slight and brittle 
thread ; France and Spain watching your conduct, and waiting for 
the maturity of your errors ; with a vigilant eye to America, and 
the temper of your colonies, more than to their own concerns, be 
they what they may. 

" To conclude, my lords ; if the ministers thus persevere in mis- 
advising and misleading the king, I will not say that they can alien- 
ate the aifections of his subjects from his crown ; but I will affirm, 
that they will make the crown not worth his wearing: I will not say 
that the king is betrayed; but I will pronounce, that the kingdom is 
undone." 



The Peroration of Edmund Burlce's speech, on the imjjeaehment of 
Warren Hastings. 

Extract from Mr. Burke's speech in Westminster HalL, on the sixth day of 
the trial, 15th Feb., 1788. 

"il^ Lords, — We have now laid before you the whole conduct of 
Warren Hastings, foul, wicked, nefarious, and cruel as it has been, 
and we ask, what is it, that we want here to a great act of national 
justice ? Do we want a cause, my lords ? You have the cause of 
oppressed princes, of undone women of the first rank, of desolated 
provinces, and of wasted kingdoms. 

" Do you want a criminal, my lords ? When was there so much 
iniquity ever laid to the charge of any one ? — No, my lords, you 
must not look to punish any other such delinquent from India. 
Warren Hastings has not left substance enough in India to nourish 
such another delinquent. 



I'JQ THE FORUM. 

" My lords, is it a prosecutor you want ? — You have before ypu 
the Commons of Great Britain as prosecutors ; and, I believe, my 
lords, that the sun, in his beneficent progress round the world, does 
not behold a more glorious sight than that of men, separated from 
a remote people by the material bonds and barriers of nature, united 
by the bond of a social and moral community; — all the Commons 
of England resenting, as their own, the indignities and cruelties that 
are offered to all the people of India. 

" Do you want a tribunal ? My lords, no example of antiquity, 
nothing in the modern world, nothing in the range of human imagi- 
nation, can supply us with a tribunal like this. My lords, here we 
see, virtually, in the mind's eye, that sacred majesty of the crown, 
under whose authority you sit, and whose power you exercise. We 
have here the heir apparent to the crown. We have here all the 
branches of the royal family, in a situation between majesty and 
subjection. My lords, we have a great hereditary peerage here : 
those, who have their own, honor, the honor of their ancestors, and 
of their posterity, to guard. We have here a new nobility, who have 
risen, and exalted themselves by various merits, by great military 
services, which have extended the fame of this country from the 
rising to the setting sun. We have persons exalted from the prac- 
tice of the law, from the place in which they administered high, 
though subordinate justice, to a seat here, to enlighten with their 
knowledge, and to strengthen with their votes, those principles which 
have distinguished the courts in which they have presided. My lords, 
you have here also the lights of our .religion; you have the bishops 
of England. You have the representatives of that religion, which 
says, that their God is love, that the very vital spirit of their insti- 
tution is charity." 



FORENSIC ELOQUENCE. ' ^77 

CHARITABLE USES. 

Extract from tlie argument of Horace Binnei/, in the case of Girard's 
Will, in the Supreme Court of the United States, Jan. Term, 18J4. 

" It has been said that the law of England derived the doctrine 
of charitable uses from the Roman Civil Law. Lord Thurlow has 
said it, and there are others who have said the same thing. It is 
by no means clear. It may very well be doubted. It is not worth 
the time necessary for the investigation. One of the worst doctrines, 
as formerly understood in England, the doctrine of Cy-jjres^ has 
been derived from the Roman law, and perhaps little else. Constan- 
tine certainly sanctioned what are called pious uses. A successor, 
Valentinian, restrained donations to churches, without disturbing 
donations to the poor ; — and Justinian abolished the restraint, and 
confirmed and established such uses generally and forever. 

" But where did the Roman Law get them ? We might infer the 
source, from the fact that Constantine was the first Christian Em- 
peror, — that Valentinian was an Arian, a sagacious, bold and cruel 
soldier, but the tolerant friend of Jews and Pagans, and a persecu- 
tor of the Christians, — and that Justinian, ' the vain titles of whose 
^^ctories are crumbled into dust, while the name of the Leoislator is 
inscribed on a fair and everlasting monument,' obtains, with this 
praise from the Historian of the Decline and FaU, the more enviable 
sneer, of being at all times the 'pious,' and at least in his youth, 
the ' orthodox Justinian.' We might infer it still better from that 
section of the code, which, after liberating gifts to orphan-houses and 
other religious and charitable institutions, ' a lucrativorum inscrip- 
tionihus^ and confining the effect of these charges to other persons, 
concludes with the inquiries — ' Cur enim non faciamus discrimeu 
inter res clivinas et humanas ? Et quare non competens prerogativa 
celcsti favor i conservetur V 

"What are pious uses! They are uses destined to some work of 



178 'THE FORUM. • 

benevolence. Whether they relate to spiritual or temporal concerns, 
— whether their object be to propagate the doctrines of rehgion, to 
relieve the sufferings of humanity, or to promote those grave and 
sober interests of the public, which concern the weU being of the 
people at all times, — all of them come under the name of ' disposi- 
tiones pii testatoris^ 

" They come, then, from that religion to which Constantine was 
converted, which Valentinian persecuted, and which Justinian more 
completely established ; and from the same religion they would have 
come to England, and to these States, though the Pandects had still 
slumbered at Amalfi, or Rome had remiained forever trodden down 
by the barbarians of Scythia and Germany. I say the legal doc- 
trine of pious uses comes from the Bible. I do not say that the 
principle and duty of charity, are not derived from natural religion 
also. Individuals may have taken it from this source. The law has 
taken it in all cases from the revealed will of Grod. 

" What is a charitable or pious gift, according to that religion ? It 
is whatever is given for the love of God, or for the love of your 
neighbor, in the catholic and universal sense, — given from these mo- 
tives, and to these ends, — free from the stain or taint of every con- 
sideration that is personal, private or selfish. 

" The domestic relations, it is not to be doubted, are most fre- 
quently a bond of virtue, as they are also the source of some of the 
most delightful as well as ennobling emotions of the heart. In the 
same class, both for purity and influence on human happiness, we 
may generally place the relations of kindred by blood or alliance, 
our friends and benefactors, those of whom we are a part, or who 
are an acknowledged part of ourselves. There is nothing in the 
Bible to sever any of these relations, if cultivated wisely, and in due 
subordination to greater duties ; nor much, with perhaps an excep- 
tion or two, to enjoin a special observance of them. One of them 
has the sanction of a commandment in the second table, to make 



FORENSIC ELOQUENCE. ' ^^jg 

children remember their parents, who need no command to remem- 
ber ^/i'e?»; and another is defended by injunctions, against infirmi- 
ties, which, while they are its cement, are often its ruin. All of them 
are deeply rooted in our nature. Instances are not wanting of their 
vivid influence between men whose nature is discolored by the dark- 
est stains ; and without any emphatic sanctions in the revealed Word, 
they are perhaps more than sufficiently invigorated by natural im- 
pulses, which for good or evil rarely or never sleep. The feelings 
which attend them are not unmixed with benevolence — nay, they are 
often deeply tinctured with it ; but benevolence does not bear su- 
preme rule among them, nor is it their sole guide and governor. It 
is not to be forgotten by the Christian moralist, that although the 
ties which bind men together in these narrower relations, are neces- 
sary to their happiness, and therefore to their virtue, the due observ- 
ance of the relations themselves is not that which the Gospel meant 
chiefly to inculcate upon man. Father and mother, son and daugh- 
ter, husband and wife, master and servant, kinsmen, friends, bene- 
factors and dependents, — while such relations bind individuals toge- 
ther, they often break society into sections, and deny the larger 
claims of human brotherhood. They are an expansion, and some- 
times little else, of the love of self. This is in many instances their 
centre and their circumference. The gospel was designed to give 
man a truer centre, and a larger circumference ; to wean him from 
self and selfish things — even from selfish virtues, which are ' of the 
earth, earthy,' — to make the intensity of his self-love the standard 
of his love of human kind, and to build him up for heaven, upon 
that which is the foundation of the law and the prophets, the love 
of God and the love of his neighbor. 

" Here are the two great principles upon which charitable or pious 
uses depend. The love of' God is the basis of all that are bestowed 
for his honor, the building up of his church, the support of his min- 
isters, the religious instruction of mankind. The love of his neigh- 



]_gQ THE FORUM. 

bor^ is the principle that prompts and consecrates all the rest. The 
currents of these two great affections finally run together, and they 
are at all times so near, that they can hardly be said to be separated. 
The love of one's neighbor, leads the heart upward to the common 
Father of all, and the love of God leads it through him to all his 
children. The distinction between the two descriptions of charities, 
the, doctrinal and the practical, or as they may with more propriety 
be called, the religious and the social, is one, however, that Christi- 
anity can hardly be said to enforce, since all its doctrines are practi- 
cal, and all the charities it enjoins are religious ; but it is of some 
moment in the law, as may hereafter be perceived. 

" But who is my neighbor 1 It was, perhaps, diflB.cult to make a 
Jew, a Jewish lawyer especially, whose profession was not the best 
in the world to enlarge his heart — it might have been difficult for 
some teachers to make such a Jew understand that he was neighbor 
to a Samaritan, a schismatic, with whom the Jews '■ had no dealings;' 
but it was not at all difficult to make him confess, by the voice of his 
own self-love that a Samaritan was neighbor to a Jew. A Jew, 
whose brother had fallen among thieves, who had stripped him of 
his raiment, and wounded him, and left him half dead, was not slow 
to confess, that he that showed mercy on him, was his neighbor, even 
though he was a Samaritan. 

" Even the disciples of the Great Teacher, the fishermen from the 
strand of Genesareth, who, from their station, and the vicissitudes of 
their calling, would seem to have been more than others in sympathy 
with the unprotected and unprovided of the earth, were not quick to 
learn this great lesson. An outcast from the coast of Israel, a Ca- 
naanite, who sought relief for her demoniac daughter, though she 
came with the strongest claim that humanity ever makes for sj'mpa- 
thy and succor — a wretched mother imploring aid for her afflicted 
child — received from them nothing but ' send her away, for she crieth 
after us.' The sentiment in their hearts, their Master, preparing the 



FORENSIC ELOQUENCE. 281 

lesson for them, seems to have put into words : ' It is not meet to 
take the children's bread, and to cast it to dogs.' But when the 
reply came — ' Truth, Lord, yet the dogs eat of the crumbs which 
fall from their master's table' — the reproof of the misjudging disci- 
ples, and the restoration of the wretched demoniac, were conveyed 
by the same answer : ' Oh woman, great is thy faithj be it unto thee 
even as thou wilt.' 

" Lesson after lesson was designed to lead the Jew from the pre- 
judices of his narrow family, to ' all the kindreds upon earth,' and 
to open his heart to even the proscribed Gentile, instead of suffering 
none to enter but those who held to him the personal relations, by 
which his own infirmities were cherished and confirmed — to lead him 
to imitate that celestial mercy which sends the rain upon the unjust, 
and ' is kind to the unthankful and to the evil,' — to impel him, in 
fine, to love his enemies, and to do good unto all men, as his brethren 
of one descent from the same Father in heaven. ' He that loveth 
father and mother more than me, is not worthy of me : and he that 
loveth son or daughter more than me, is not worthy of me.' ' My 
mothei; and my brethren are these which hear the word of God and 
do it.' Such was the language of Christ to those who were prone 
to think, that the love of their own blood, or of their own nation, 
was the highest attainment of virtue. 

" The great final illustration of the principle of charity, is given 
as almost the last act of the ministry of Christ, when he prefigured 
the gathering of all nations, and the separation of one from another, 
as a shepherd divides the sheep from the goats. To those on his 
right hand the king shall say — ' I was an hungered, and ye gave me 
meat ; I was thirsty, and ye gave me drink : I was a stranger, and 
ye took me in ; naked, and ye clothed me ; sick, and ye visited me : 
I was in prison, and ye came unto me.' And when the righteous, 
unconscious of this personal ministration to his wants, say, 'Lord, 
when?' the answer consummates the lesson, and leaves it for the in- 



2g2 THE FORUM. 

struction of the living upon earth, as it is to be pronounced for their 
beatitude in ■ heaven : ' Inasmuch as ye have done it to one of the 
least of these my h'ethren^ ye have done it u7ito me.'' 

" It is not, therefore, in gifts to the beloved relation, the faithful 
friend, the personal benefactor, the personal dependent, the known, 
the individuated, vrhether beloved for merit, from gratitude, by per- 
sonal association, or in reciprocation of good offices, that we are to 
look for acts of diarity. These have their personal motives and 
their personal ends. We must go out of this narrow circle, where 
sometimes self-love is all that kindles our emotions, and perhaps 
always gives to them the warmth which we mistake for a nobler fire, 
into the larger circle of human brotherhood — the unrelated by any 
nearer affinity — the naked, the hungry, the sick, the stranger and 
the captive — and must give to them, in humble reverence, and in 
faint imitation, of that divine beneficence, that gives every thing to 
us. This alone, in the sense of Scripture, and in the sense of law 
also, is a charitable gift. 

" Nor is the extension of the hand to the wayside mendicant, or 
the administration of succor to the traveller who has just fallen 
among thieves near our path, or that occasional relief which feeling 
rather than principle prompts, to the distressed who meet our eyes, 
a compliance with the duty which the gospel enjoins. Provision for 
the day of need — accumulation for future necessity — a provident 
forecast for those who can have none for themselves — a preparation 
for our brethren under the gospel, such as we should make for our 
children and brothers by blood — aU these are not more the sugges- 
tion of reason, than they are the command of religion. The apos- 
tolical direction to the churches was distinct and reiterated. 'Upon 
the first day of the week let every one of you lay by him in store ^ 
as God hath prospered him, that there be no gatherings when I 
come. And when I come, whomsoever ye shall approve by your 
letters, them wUl I send to bring your liberality unto Jerusalem. 



FORENSIC ELOQUENCE. ' lg3 

And if it be meet that I go also, tlieij shall go ivith me.^ St. Paul, 
himself, was a trustee for charitable uses, and by his injunction and 
example, gave the highest sanctity to both the charity and the 
trust. 

" It is by no means in the Gospel that this provision for the help- 
less and unknown is first announced, though it is there that the pre- 
cept has its greatest expansion and emphasis. For whose benefit 
was the Jewish command, 'When thou cuttest down thine har- 
vest in the field, and hast forgot a sheaf in the field, thou shalt not 
go again to fetch it !' When the olive tree was beaten, for whose sake 
was the husbandman commanded not to go over the boughs again? 
For whom was the gleaning of the grapes, after the vintage was 
gathered ? They were all for the unknown, the unrelated, the 
unfriended — the stranger, the fatherless, and the widow. ' Thou 
shalt remember that thou wast a bondman in the land of Egypt. 
Therefore I command thee to do this thing.' ' Thou shalt not glean 
thy vineyard, neither shalt thou gather every grape of thy vineyard. 
Thou shalt leave them for the poor and the stranger. I am the 
Lord, your God.' ' For ye know the heart of a stranger, seeing ye 
were strangers in the land of Egypt.' The appeals are constant, 
reiterated, urgent — they are more than appeals, they are commands 
directly addressed to the Jews by the highest authority, and in the 
dread Name itself, to extend their gifts and their protection to the 
unknown stranger, the unfathered orphan, and the widow. 

" It is this command so clear, and sustained by such sanctions, to 
the Jews first, and afterwards to the people of all nations, that makes 
charitable uses a matter of religious duty, so that to deny the per- 
formance or the enjoyment of them to any man, during his life, or at 
his death, or to withhold from them the sanction and protection of 
the law, is to deny him the exercise of one of the most sacred rights 
of conscience. Next to the worship of Almighty God, and as a part 
even of that worship itself, they are esteemed, and ever have been. 



284 THE FORUM. 

as both a duty and a blessing. They were so promulgated to the 
Jews before the coming of Christ, and they were so taught and 
enjoined under the new covenant; and it is a miserable mistake, 
both of their origin and of their end, to question them for that un- 
certainty of particular object, which is of their very substance and 



John Sergeant in tlie same Case. 

"When and how did Christianity come into England? for when- 
ever that was, the seed of the law of charity came with it, and 
ripened, and became fruitful, as it had done at Rome, but without, 
as far as appears, any deliberate apostacy to heathenism. But here 
it seems necessary, in a legal discussion, to rest this great argument, 
strong as the foundations of the world, upon the narrow, feeble basis 
of human authority. It can be done with more precision and cer- 
tainty as to the law of England, than as to the civil law. A part^ 
of the law of England is the natural and revealed will of Grod. 
The Scriptures of the Old and New Testament contain the revela- 
tion. This, we understand from Blackstone, is part of the ancient 
common law of England. We must bear it in mind when we 
come to speak of the common law of Pennsylvania, derived from 
England. 

"When did this become a part of the law of England? We 
might answer the question, as well as that about the law of charity, 
by asking another — when was it not a part ? It is sufficient that it 
is part of the common law. Does any one believe that it became so 
by the statute of 43d Elizabeth ? The first dispensation was to one 
people. They might well deem themselves honored above all the 
nations of the earth, and especially because to them were entrusted 
the oracles of truth. They did not seek to make proselytes, though 
some proselytes there were, of two descriptions. Their religion was 
not communicable to nations or people. In their dispersion, they 



FOREXSIC ELOQUENCE. 185 

have been scattered among all nations, but they are still a people by 
themselves, and their religion serves to distinguish them from all 
other people, so that now, after so many ages of dispersion, the order 
of Providence requiring, they could be brought together again, with 
certainty, without any miraculous creation of power. This is the 
continued miracle of their existence. It is needless to add, that as 
a religion of the people, this never came into England. Christianity' 
is believed by some to have been introduced into Britain nearly as 
soon as at Rome, by the Apostles themselves, at all events, that the 
church was there established before the end of the second century. 
It was trodden down by the heathen invaders, except in the moun- 
tainous districts, where it is said to have continued without interrup- 
tion. Not pausing to examine the historical evidence of this state- 
ment, being of little consequence in the present inquiry, (though 
important in the history of the church,) no one doubts the introduc- 
tion of Christianity into Saxon England by Augustin, before the end 
of the sixth century. It was then thoroughly established." 

" At the Norman conquest, (a. d. 1 066,) it was found thoroughly 
established. WiUiam invaded England with the sanction of a papal 
grant : and after he was seated on the throne, his controversies with 
Gregory VII., particularly about homage and Peter pence, show the 
religious state of the kingdom. In determined will, and eminent 
abilities, William and Hildebrand were well matched. But in his 
own kingdom, William prevailed, and Hildebrand's haughty spirit 
was obhged to yield. The same point is equally established by the 
controversies between William Rufus and Anselm, Archbishop of 
Canterbury, a prelate whose memory seems entitled to great respect, 
as well as to sympathy for the wrongs he suffered, not only from his 
own sovereign, but also from the See of Rome. 

" This was five centuries before the statute of 43 Elizabeth. 
Wicklif's attempt to reform the church, was in 1356, more than two 
centuries before the statute. 

VOL. I. — 13 



186 



THE FORUM. 



" Sufficientj however, would it be to say, that Christianity was 
found fully established at the accession of Henry VIII., almost a cen- 
tury before the statute, which no one can by any possibility question. 

" The revealed law, then, was a part of the common law, fully 
incorporated into it, as early as the time of Alfred, (the ninth cen- 
tury,) at the latest. That revealed law, is a law of charity. Who 
can deny it ? If it had the virtue to produce the law of charity in 
the code of Imperial Rome, how could it fail to do so in England ? 
Or, how can it be that in the latter it did not fill up its own proper 
measure as completely as in the former ? From the earliest period, 
the revealed law was a part of the common law of England, regarded 
in judgment. The note in Tothill, 126, cited by Judge Baldwin in 
Magill V. Brown, p. 54, is a striking instance of its acknowledgment. 
' The law of God speaks for him ; equity and good conscience speak 
for him ; and the law of the land speaketh not against him.' The 
same is literally true of every gift to charity. Does any one deny 
that charity is a part of the revealed law ? If he do not, he must 
admit that gifts to the poor, or for the poor, in whatever form, are 
at all times under the protection of that law. If he do, let him 
open the sacred books, wherever he will, and there he will find the 
law of charity, first given to the people of Israel, and then to the 
whole earth. 

" To this divine light, we owe the beautiful creation of a paternal 
power in the State — a parens patriae. It extends, says the learned 
counsel (Gen. Jones,) to infants, females and charities, and, it must 
be added, to idiots and lunatics, and all the helpless, to watch over 
and guard them, in their persons and property, and take care that 
their helplessness shall not be their destruction. In arranging chari- 
ties in this class, the highest conceivable claim is conceded to them, 
and the surest basis of legal support. For what would society bo 
without such a paternal power ? Would it be a civilized and chris- 
tian community ? Or would it not be a nation of savages, with all 



FORENSIC ELOQUENCE. 187 

the vices and cruelty belonging to that condition ? To suppose tins 
parental power to belong only to a crown, and that it can be exer- 
cised only by a chancellor, under royal delegation, would be to deny 
it to all but monarchical governments, and derogatory, in the highest 
degree, to our republican States. But this is a mistake. The pa- 
rental power is not an attribute of any form of government — it is 
the attribute, the inseparable attribute of Christian society, the law 
of its nature, and all that depends upon the form of government, is 
the mode of administering it. With us, it resides in the State, and 
is exercised by such instrumentality as may be deemed most fit for 
the purpose. The law itself always exists, and is of perpetual obli- 
gation, and so are the rights and duties it acknowledges. If there 
be instances in which, from any cause, there is a failure of active 
aid, there is none, there can be none, in which it is lawful to wrong 
the helpless, or to despoil a charity, or in which the law will assist 
the spoUer. So far, at least, the law of the paternal power is ever 
in force. For the present purpose, as will be seen, this is enough. 
The charity in question, is asking no aid. The trust is in course of 
execution by the trustees, under the sanction of the laws of Penn- 
sylvania. It requires no aid from a Court of Chancery, nor from 
any other court. What is asked, is against the charity — that it shall 
be destroyed, that the fund shall be taken from the trust and from 
the trustees, and given to individuals, not objects of the charity, for 
their own exclusive use. Such an attempt is contrary to the revealed 
law. It is contrary to the common law, which may not have been 
provided with efficacious remedial process to help a good work, but 
surely never assisted in its destruction. It is contrary to the first 
principles of civilized society, and inconsistent with acknowledged 
truth." 



188 



THE FORU; 



Mr. Webster, in the case of Girard's Will.— Christianity is the law of 

the land. 

" It is the same in Pennsylvania as elsewhere, the general princi- 
ples and public policy are sometimes established by constitutional 
provisions, sometimes by legislative enactments, sometimes by judi- 
cial decisions, and sometimes by general consent. But however they 
may be established, there is nothing that we look for with more cer- 
tainty than this general principle, that Christianity is part of the law 
of the land. This was the case among the Puritans of New Eng- 
land, the Episcopalians of the Southern States, the Pennsylvania 
Quakers, the Baptists, the mass of the followers of Whitfield and 
Wesley, and the Presbyterians ; all brought and all adopted this 
great truth, and all have sustained it. And where there is any reli- 
gious sentiment amongst men at aU, this sentiment incorporates itself 
with the law. Every thing declares it. The massive cathedral of 
the Catholic j the Episcopalian church, with its lofty spire pointing 
heavenward ; the plain temple of the Quaker ; the log church of the 
hardy pioneer of the wilderness; the mementoes and memorials 
around and about us ; the consecrated graveyards, their tombstones 
and epitaphs, their silent vaults, their mouldering contents ; all attest 
it. The dead prove it as well as the living. The generation that 
are gone before speak to it, and pronounce it from the tomb. We 
feel it. All, all, proclaim that Christianity, general, tolerant Chris- 
tianity, Christianity independent of sects and parties, that Christi- 
anity to which the sword and the fagot are unknown, general, tole- 
rant Christianity, is the law of the land." 

'' I now take leave of this cause. I look for no good whatever 
from the establishment of this school, this college, this scheme, this 
experiment of an education in ' practical morality,' unblessed by the 
influences of religion. It sometimes happens to man to attain by 
accident that which he could not aclueve by long-continued exercise 



FORENSIC ELOQUENCE. ],g9 

of industry and ability. And it is said even of the man of genius, 
that by chance he will sometimes ' snatch a grace beyond the reach 
of art.' And I believe that men sometimes do miscliief, not only 
beyond their intent, but beyond the ordinary scope of their talents 
and ability. In my opinion, if Mr. Grirard had given years to the 
study of a mode by which he could dispose of his vast fortune so 
that no good could arise to the general cause of charity, no good to 
the general cause of learning, no good to human society, and which 
should be most productive of protracted struggles, troubles, and dif- 
ficulties, in the popular counsels of a great city, he could not so 
effectually have attained that result as he has by this devise now 
before the court. It is not the result of good fortunes, but of bad 
fortunes, which have overridden and cast down whatever of good 
might have been accomplished by a different disposition. I be- 
lieve that this plan, this scheme, was unblessed in all its purposes, 
and in all its original plans. Unwise in all its frame and theory, 
while it lives it will lead an annoyed and troubled life, and leave 
an unblessed memory when it dies. If I could persuade myself 
that this court would come to such a decision as, in my opinion, the 
public good' and the law require, and if I could believe that any 
humble efforts of my own had contributed in the least to lead to 
such a result, I should deem it the crowning mercy of my profes- 
sional life." 

These specimens of the style^ of American lawyers, 
will compare, for strength, purity, and eloquence, with 
any production of former or present times ; and there 
is certainly notliing in English oratory, that exhibits 
more argumentative power, or a richer vein of legal 
and historical knowledge. 

There is one other speech, delivered by Joseph R. 



]^9Q THE FORUM. 

Ingersoll, in the celebrated case of Ricliard Smith, in- 
dicted for the murder of Captain John Carson, which 
we may he privileged to introduce. Mr. Ingersoll was, 
at the date of tliis effort, under thirty years of age — 
the youngest of all the counsel concerned. The case 
did not admit of the display of great legal attaimnents, 
hut there have been but few speeches pronounced in 
this country, more remarkable for deep pathos and 
classical beauty. To say, that it was equal to any 
argument in the cause, is sufficient commendation, 
when it is known that such men as WilHam Rawle 
and Jared Ingersoll, were concerned. Space, however, 
is not allowed for more than the exordium; in pre- 
senting which, we feel justified in observing, that the 
grace and propriety of its delivery were equal to the 
copiousness and fehcity of its diction.* 

" To you, who have been state prisoners for the last five days, it 
must be a subject of little satisfaction that so many counsel are per- 
mitted to address you. Yet the humane policy of our laws, ever 
watchful of the treasure of life, has surrounded it with all the sanc- 
tions that human wisdom can devise. A stranger, who has recently 
arrived from the continent of Europe, where he has been accustomed 
to witness the comparative disregard of life, which is exhibited by 
the tribunals of older countries, and has now been an attentive spec- 
tator of this scene, has expressed his astonishment and delight at the 
opportunities here afforded for exculpation of innocence, and the 

* Trial of Richard Smith, as principal, and Ann Carson, as accessory, 
20th of January, 1816. — page 145. 



FORENSIC ELOQUENCE. 291 

complete and satisfactory demonstrations of guilt, that must necessa- 
rily precede conviction. To him it was equally novel and wonderful, 
that while a public officer, divested of the feelings of animosity which 
might be expected to influence the friends of the deceased, alone con- 
ducted the prosecution, the advocates of the accused, without restric- 
tion of number or limitation in topics of discussion, might freely range 
over the most extensive fields of argument, and gather from every 
quarter, illustrations and inducements, in favor of him who is still 
presumed to be innocent. The momentary inconvenience which you 
sustain in a painful separation from your business and families during 
a long protracted trial, will readily be reconciled to minds of a pro- 
per tone, by the reflection that it may save a fellow creature. If each 
succeeding person who addresses you, can present a single new idea, 
contributing, however partially, to this important end, or even can 
so illustrate a thought already suggested, as to give it additional 
force and impressiveness, the laborious attention will be well be- 
stowed. 

" The prisoner is now alone upon his trial. But in the indictment 
which has been found, he is associated with another, who was exposed 
to the same arraignment, and has equally appealed for protection to 
the mercy of her God, and the justice of the country. An union of 
hearts and hands, under solemnities founded in the purest principles 
of religion and morality, and recognised and respected by the muni- 
cipal law, has received an awful confirmation by exposure to a com- 
mon danger, and inculpation in a common crime. That person 
awaits in anxious, but respectful solicitude, the moment when she too 
will be exposed to the scrutiny of a trial ; for she will hail that mo- 
ment as the harbinger of her enlargement from a disgraceful impri- 
sonment, and her restoration to the society of those children, whom 
she never has abandoned — whom she never has ceased to watch over 
with the tenderest affection — to whom she has performed the duties 
more peculiarly incumbent on her sex, as well as those which would 



192 THE FORUM. 

have become a father's care. She is not now upon her trial. Her 
defence, therefore, is no further a subject of animadversion, than as 
it has been connected with that of the prisoner at the bar, either by 
the inherent nature of the case, arising from evidence of joint parti- 
cipation in collateral transactions, or by the course pursued by the 
prosecuting officers of the commonwealth. The former authorises 
inferences of innocence, in favor of one of the parties, from acknow- 
ledged or established proof with regard to the other — the latter, 
designating the necessity of that connection, affords the additional 
and authoritative sanction to these inferences of official opinion and 
assent. The charge is, in effect, that of a combination to commit 
murder. Disproving the combination, we go far to disprove the 
whole crime. I shall not be considered as deviating from the strictest 
line of argument, by which I am willing to be bound, when I dwell 
minutely upon the conduct, as it has been displayed in the evidence, 
of the unhappy female, who has been the unfortunate, but innocent 
subject, of all these melancholy controversies." 

" Besides, the history of the case is little more than the history of 
its most conspicuous character; and exculpating her, will largely 
contribute to place the blame where it ought to rest, and to vindicate 
him, who has been wrongfully accused. Certainly the circumstances 
now under discussion, are of an unprecedented character. The annals 
of criminal jurisprudence furnish no parallel. A husband, after 
having for years abandoned the children to whom he had given 
existence, and whom he was bound to protect, in the bosom of what 
might have continued to be his family, has fallen the victim of his 
own folly, or crimes. A wife is arraigned for butchering in cold 
blood, the parent of her children and the former partner of her bed, 
once endeared to her by the strongest ties that can sanctify human 
nature ; and the legitimate sanction of a new tie, is threatened with 
dissolution by the union of the second husband in the crime. To 
complete the whole — the parents of that wife, are sunmioned to im- 



FORENSIC ELOQUENCE. 293 

precate the vengeance of the law, and to consign to an ignominious 
death, both their child and the husband of her choice. All the 
charities and all the sympathies of our nature, are torn asunder. It 
should seem as if the arch fiend of hell had woven his blackest web, 
to . display in one dismal perspective, the most complicated group oi' 
human wretchedness." 

" The Egyptians, we are told, in no barbarous age, by way of 
example to the living, subjected the bodies of their departed citizens 
to the ceremony of a trial ; and exposed them to punishment, which 
was thus divested of its cruelty, and excited scarcely less emotion 
among the spectators, than if it had been accompanied by suffering 
to the accused. Among modern nations, and in a more enhghtened 
age, the dead are respected, chiefly from regard to the * living ; but 
when the safety or advantage of the living is to be promoted, or 
secured by a free inquiry into the conduct of the dead, why should 
it not be made ? History, which has been termed philosophy, teach- 
ing by examples, is little else than a long catalogue of the crimes of 
those who have gone to their account. A never ending perseverance 
in error, would be the consequence of an omission to detail them. 
And posterity, which execrates the memory of a Jefferies, no less 
applauds the historian for transmitting it to their hate, than for 
recording in the same enlightened page, the virtues of many of his 
cotemporaries. Shall the shade of Carson be invoked to excite un- 
warrantable feelings of indignation against a prisoner, who can no 
longer defend himself — to stimulate the curses that follow him to 
his cell, and pursue him in his melancholy journeys back again to the 
bar — to prompt the unmanly blow — and yet shall it not be used to 
allay the sensation it has thus excited ? Shall none of the transac- 
tions of his life be exhibited, except the doubtful penitence of his 
dying hour ? Shall we be blinded to all the errors of his devious 
pilgrimage, by an imaginary apotheosis, arising only from the melan- 
choly character of his death ? No ! no ! The body must be dis- 



1^94 THE FORUM. 

sected, to ascertain the disease of whicli it died — the character must 
be scrutinizedj to discover how far these violent prepossessions are 
just." 



We must, of course, in comparing ancient and mo- 
dern eloquence, make allowances for the inadequacy 
of translations, to do entire justice to what are called 
the dead languages ; and we must also allow for the 
difference in government and in men, in order to 
do justice to the orators of antiquity, and to under- 
stand their control over the popular mind, ^schines, 
in reciting to his class the great oration of Demosthe- 
nes for the Crown, perceiving them lost in admiration, 
exclaimed, "But what would have been your asto- 
nishment, if you had heard it delivered by himself?" 
hence, we may readily imagine that the effect of elocu- 
tion depended principally upon the manner of the 
orator. Looking to the sentiments and arguments 
alone, we cannot perceive any thing in this speech, 
excepting its abuse, that outstrips modern competition. 
Undoubtedly, the action of a speaker then was, and 
still is, the soul of a speech. There is no oratorical 
effort that ever captivated the world, that cannot, by 
an imperfect delivery, be rendered utterly contempti- 
ble — ^not in itself, but in its influence upon others. 
Some speeches have no action in themselves, and may 
be called mere essays; action imparted to them by the 
speaker, will not improve them, but render them worse. 



FORENSIC ELOQUENCE. ' ;[95 

Others, again, have great inherent energy and action, 
and require commensurate zeal and animation in order 
to their effective delivery. 

If any confirmation of the truth of this doctrine be 
required, cast your eyes upon the drama. Wherein 
consists the vast difference between Cooke, and Kean, 
and Kemble, and Booth, and Forrest — and the vilest 
drivellers that ever converted a tragedy into a farce ? 
The latter are perfectly familiar with their parts ; that 
is, they have committed the words of their author with 
great exactness, but they have forgotten, if they ever 
knew, " that the word killeth — ^it is the spirit which 
maketh alive." They are actually crushed by the 
weight of their own armor, and like Cardinal Beaufort, 
they " die, and make no sign." There is this consola- 
tion, however, that their death, is the life of the audi- 
ence. 

Oratory, then, according to my humble views, springs 
rather from the heart than the head ; though its best 
efforts are usually the result of joint influence. 

Moral courage, decision of character, and energetic 
mental and physical action, all belong to the same cate- 
gory, and contribute to constitute the thorough advocate. 
They are indispensable ; and it is somewhat sui^prising, 
that in these qualities both Demosthenes and Cicero were 
occasionally deficient. Those who, among the ancients, 
manifested the most of them, were Julius Csesar and 
the Apostle Paul. The casting away his shield, dedi- 



196 THE FORUM. 

cated to good fortune, and Ms terror in his first speech 
before Philip of Macedon, reflect hut httle credit upon 
the courage of Demosthenes, and bring his bravadoes 
into doubt. There is no such enemy to memory or 
oratory as unreasonable fear; a man of a feeble temper, 
never can succeed. 

Cicero was also thrown into such consternation in his 
oration for Milo, upon beholding the soldiery in the senate 
chamber, that although he promised the most, he per- 
formed the least. Of that occasion, he thus speaks : — 

" Those guards you see planted before all the templeSj however 
intended to prevent violence, yet strike the orator with terror ; so 
that, even in the roRUM, and during a trial, though attended with a 
useful and necessary guard, I cannot help being under some appre- 
hensions, at the same time that I am sensible they are without foun- 
dation. Indeed, if I imagined they were stationed there in opposition 
to Milo, I should give way, my lords, to the times, and conclude 
there was no room for an orator in the midst of such an armed force. 
But the prudence of Pompey, a man of such distinguished wisdom 
and equity, both cheers and relieves me, whose devotion will never 
suffer him to leave a person, whom he has dehvered up to a legal 
trial, exposed to the rage of the soldiery ; nor his wisdom, to give 
the sanction of public authority to the outrages of a furious mob."* 

It will also be remembered, that he composed four 

* Cicero for Milo — delivered by Cicero, at tlie age of fifty-five — re- 
touched and presented to Milo, while exiled, at Marseilles. It was of this 
speech, that Milo is reported to have said, that if it had been delivered as 
written, he should not have been condemned to banishment. 



FORENSIC ELOQUENCE. ' 1^'f 

speeches, which are called his Philippics against Mark 
Antony ; three of which he never ventured to deliver. 
While the speech that he did pronounce, was in the 
absence of Antony, and manifests the utmost timidity. 
His greatest — perhaps his only defect — was want of 
moral courage. Had he possessed the firmness and for- 
titude of Cato or Caesar, he would have been the man 
of Rome, in Rome's most palmy state. Even his death 
was marked by what must, at that time, have been 
considered great pusillanimity. 

This, also, coming down to modern times, was Lord 
Mansfield's defect. He was repeatedly struck dumb, 
by the attacks of Lord Chatham. Although Clearly the 
most accomplished debater of his time, yet was he 
unable to encounter or resist the torrent of Chatham's 
declamation and invective. Nay, further, it is said, 
that when Chatham turning to him, said, " I must now 
address a few words to Mr. Attorney — they shall be 
few, but they shall be daggers ;" — ^that Mansfield actu- 
ally quailed, and shrunk under the attack. When, 
fixing his eye upon him, as if in commiseration, Chat- 
ham exclaimed, " Judge Festus trembles ! — he shall 
hear from me some other day." He also betrayed the 
same want of self-possession in the great libel ques- 
tion, in which he was opposed to Lord Camden, who, 
though his inferior, obtained over him a decided tri- 
umph. 

But there is a still more serious objection to him, if, 



198 THE FORUM. 

indeed, it be not a different phase of the same objec- 
tion — a want of heart. Here it was, we suppose, that 
Chatham had, and felt his advantage. Mansfield was 
evidently his superior in learning, and in grasp of 
mind ; but he had not the spuit, the high and indomi- 
table will of his adversary. A cold and selfish man 
cannot warm others, or excite sympathies which his 
own heart is incapable of feeling ; the world is even 
with him — he shows no kindness, and receives none. 

Lord Erskine, too — the brightest of English advo- 
cates — and at times displaying most exemplary and 
undaunted resolution and bravery — lost, or surren- 
dered rather, an opportunity of a triumph, from a want 
of moral courage, when he declined taking the defence 
of Warren Hastings : no doubt — or such at least is the 
general belief — from a fear of encountering Pitt, Fox, 
and Burke. When, had he met them, one or all, it 
would have been upon his own peculiar forensic field, 
and he would have more than regained his lost honors 
in the House of Commons, by his transcendent abili- 
ties as an advocate. At a dinner given by Mr. Dun- 
das, Erskine having been rallied upon the subject of 
not maintaining his high reputation for eloquence, when 
translated to the House of Commons, Sheridan, who 
was present, said, " I'll tell you how it happens, Ers- 
kine, you are afraid of Pitt, and that is the flabby part 
of your character." 

Ellenborough, Dallas, and Plummer, all unequal to 



FORENSIC ELOQUENCE. ^99 

liim, took the defence of Hastings, successfully main- 
tained their ground against their powerful adversaries, 
and secured to themselves imperishable renown. And 
yet, Erskine, on all occasions at the bar, and especially 
in the case of The King against the Dean of St. Asaph, 
showed a determination and courage that will never be 
forgotten.* 

*A Case of Libel. — Justice Buller told the jury, "that there was no 
doubt as to the innuendoes, and that the simple question was, whether 
or not the defendant published the pamphlet?" If he did, you ought to 
convict him. 

The jury returned a verdict, " Guilty of publishing, only." Buller 
then said, " If you find him guilty of publishing, you must not use the 
word onli/." 

Erskine. — "I beg your Lordship's pardon — I mean nothing that is 
irregular. I understand they say, 'We only find him guilty of pub- 
lishing.' " 

Juror. — " Certainly ; that is all we do find." 

Buller, — " If you only attend to what is said, there is no difficulty or 
doubt." 

Erslcine. — " Gentlemen, I desire to know whether you mean the word 
only to stand in your verdict ?" 

Jury. — " Certainly." 

Buller. — " Gentlemen, if you add the word only, it will negative the 
innuendoes." 

Erskine. — "I desire your Lordship, sitting here as Judge, to record 
the verdict as given by the jury." 

Buller. — " You say he is guilty of publishing, and the meaning of the 
innuendoes is as stated in the indictment." 

Juror. — " Certainly." 

Erskine. — "Is the word onhjj to stand as part of the verdict?" 

Jury. — " Certainly." 

Erskine. — " Then I insist it shall be recorded." 



200 THE FORUM 

Pinckney, too, to whom, iii speaking of Erskine, the 
mind naturally turns, "as quales et quantos viros,'' — 
equals, on the opposite sides of the Atlantic, in profes- 
sional glory; lost caste in refusing to defend Justice 
Chase, upon his impeachment in the United States 
Senate, (although gratitude should have impelled him 
to that service,) and left to Luther Martin, Harper, 
Hopkinson, and others, those laurels that he might 
have won, and worn, himself. There are many other 
instances of this infirmity that history supphes, which 
our readers would reluctate in contemplatmg. 

Every man, however, has his w^eak hour, or we 
should all be angels. Napoleon lost Waterloo, and 
forgot to die on the field of battle ; which, speaking in 
the language of worldly ambition, would have crowned 
his fame forever. Nothing in his life, would have be- 
come him like such a death ; but as no man is wise at 
all times, so no man is brave at all times. Sudden 



Buller. — " Then the verdict must be misunderstood — let me understand 
the jury." 

Erskine. — " The jmy do understand the verdict." 

Buller. — " Sir, I will not be inteiTupted." 

Erskine. — " I stand here as an advocate for a brother citizen, and I 
desire the word only may be recorded." 

Buller. — " Sit down, Sir — remember your duty, or I shall be obliged to 
proceed in another manner." 

Erskine„ — " Your Lordship may proceed in what manner you think fit : 
1 know my duty as well as your Lordship knoM's yours ; I shall not alter 
my conduct." 



FORENSIC ELOQUENCE. 201 

and unexpected, exigencies destroy the equilibrium of 
the mind, and leave our actions rather to the control 
of chance, than reason. 

" The heart of a statesman," says Napoleon, " must 
be in his head ;" and we may be permitted to add, 
"■ the head of an advocate must be in his heart." A 
phrenologist of some distinction informs us, that in a 
blindfold examination, he happened to ascribe superior 
talents to a man, who was actually deficient in intel- 
lect. When the error was discovered, and a re-exami- 
nation took place, he observed, that the head was a 
good one, and all that it-had been described to be, but 
that the chest was small and narrow, and the heart was 
too feeble to nourish, invigorate, and stimulate the brain. 

The head, without the heart — if the comparison 
may be excused — is like a steam engine wfthout a 
boiler. Without the aid of the heart, reason is cold, 
vapid, and comparatiyely worthless. The heart is the* 
throne of the passions ; — 'tis there we rule, are ruled, 
and must be won. The passions constitute the impulse 
and motive to intellectual action, and often spontane- 
ously regulate human deportment, without regard to 
the restraints of reason, or the decree of judgment.. 
It is only, however, where the emotions or influences 
of the head and heart are judiciously adapted to 
each other, that the harmonious and. perfect orator is 
formed. Great mental accomplishments are therefore 
more necessary to those possessed of great depth and 

VOL. I. — 14 



202 THE FORUM. 

energy of feeling; — they are reason's girdle and pas- 
sion's bridle. Where there is extensive power, there 
must be co-extensive control and direction. Misap- 
plied energies eventuate in the worst consequences, 
and it is frequently to be regretted, that extraordinary 
intellectual strength, swelled into irregular and eccen- 
tric action by the impulses of the heart, like the 
mighty Nile, at times defies restraint, and sheds terror 
and dismay over those smiling regions, which it was 
designed to fertilize and to bless. 

As feudal nobility disappears before that great level- 
ing principle wdiich has equalized America, and is 
rapidly overrunning the whole world — a modern, more 
natural, more legitimate, and less questionable peerage 
will arise, the peerage of talents — in w^iich orators 
will be princes. Universal respect and unbounded 
influence, will be their assured reward ; they will be 
revered by the populace, supported and encouraged by 
the opulent; their alliance sought by every family; 
their company courted by every society ; their authorit;^ 
recognized and their aid required by every government. 
This is no illusory or far-fetched fancy. It may have 
once been a paradox, but the times have given it proof. 
Henry, and Ames, and Wirt, and Pinekney, with a 
host of other examples, all abundantly establish and 
inculcate its reality. It is therefore, we say, to this 
divine art, our youth — our educated youth — should 
assiduously apply themselves. It matters not how 



FORENSIC ELOQUENCE. ' 203 

their lot may be cast ; it matters not what may be 
their caUing : the lawyer, the clergyman, the professor 
of any science, the statesman — nay^ we may say, the 
merchant, the tradesman, the farmer, and the mechanic, 
will all derive advantage, amazing, incalculable advan- 
tage, from the improved power of speech. It is the 
best basis, the most powerful lever, the chief element 
of elevation ; and its prevalence extends " far as the 
adventurous voyager spreads his sail." Persuasion, 
now, is the only government, as it has always been the 
best government. Coercion is a tale of other times ; 
pubhc and private dominion have no longer any founda- 
tion in fear. Whether moral or forcible authority is 
to be preferred, would be an idle inquiry. For, as has 
been said, the age of constraint, hke that of chivalry, 
has passed away — ^and, assuming its true position, the 
mind now looks down upon that power, which it was 
too long taught to look up to. Artificial aggrandizement 
has given place to what may be termed natural ascen- 
dency, or the true nobihty of nature. " Viam inveniam 
aut faciam," is the doctrine of the present day ; and it 
has ever been the doctrine of daring and aspiring minds. 

" What to him, 
That wears great nature's patent in his breast, 
Are all the tinsel trappings of a court ? 
* * * . Were he ten times a lord, 

Could his redoubled titles more than vouch 
His innate worth ? The consciousness of virtue 



204 "THE FORFM. 

Shrinks from external proof, and rests alone, 
And rests secure npon approving Heaven, 
Without whose smile a diadem is dross, 
And priceless jewels glitter to betray. 
Forty thousand lords, fair weather lords. 
In their united worth, are not the tithe 
Of Nature's nobleman," 

He takes his post — not by fortune, not by chance — 
by the side of those who claim theirs by the privilege 
of birth. He holds it not by the frail tenure of inhe- 
ritance, but in his own direct, absolute, and unques- 
tionable right. No man dares dispute it — it is not 
borrowed or reflected glory ; the power that acquired 
it, is sufficient to maintain and secure it ; he builds not 
upon the fame of his ancestors ; he mounts not upon 
the stilts and crutches supplied by his friends ; he 
stands — as the Creator designed he should — upon his 
own feet, self-dependent and self-sufficient ; and he looks 
down— down upon those who, in their imaginary and 
supercilious elevation, have been taught to look down 
upon him. The poor and friendless boy is forgotten, 
in the self-formed and complete man. He looks about 
him, and despises the tinsel and trappings of the fools 
of fortune. He subdued adversity without them, and 
in his prosperity they are unnecessary. He despised 
them when before him — they are doubly contemptible 
when behind him. 

With us, there are no stars, or garters, or orders 
of nobility. There is no royal favour to court, or to 



FORENSIC ELOQUENCE. 205 

profit by ; but every freeman is a chartered king : and 
an improved intellect shall shed a brighter lustre around 
his brow, than the richest jewel in a monarch's crown; 
because, under heaven, it is emphatically his own. No 
human power can give it to him without his will — 
without his will, no human power can deprive him of 
it. How emphatically does this part of our subject 
address itself to the young? and perhaps we cannot 
do better than pause upon it a little longer, and place 
it before you in some of its varieties, even at the 
expense of the order originally proposed. 

Fortune is too transitory, too fugitive, to attract any 
permanent regard. It is like the lightning, "that doth 
cease to be, ere one can say, it lightens." And although 
thousands submit to its dominion, it can impart no 
rational gratification to its possessor, except when ap- 
plied to the promotion of virtue. The case is widely 
different, however, with a man of moral and intellec- 
tual wealth. Behold him in the literary, professional, 
or social circle — he is the very centre of interest and 
attraction — mark him in the councils of the nation, 

" Deep on liis front engraven, 
Deliberation sits, and public care." 

But to return from this digression. Although it is 
not within the professed scope of the present work, 
to go beyond the forum, yet, as eloquence " is the 



2Qg THEFORUM. 

subject of our story," we cannot, in its consideration, 
lose sight of one to whom we have incidentally re- 
ferred, and who, according to Longinus, was " among 
the first of orators" — Ave mean the Apostle Paul. He 
was commanded to " he not afraid, hut to speak, and 
hold not his peace ;" and he did speak holdly, in the 
name of the Saviour. See him standing before Felix, 
reasoning " of righteousness, temperance, and judgment 
to come." Is it to be wondered at, that the Roman 
governor trembled ? Behold him, on Mars' hill, before 
the mighty areopagus, exclaiming : — 

" Ye men of Athens ! I perceive that in all things ye are too 
superstitious, for as I passed by and beheld your devotions, I found 
an altar with this inscription, * To the unknown God,' — whom there- 
fore ye ignorantly worship, him declare I unto you." 

Then, again, in the synagogue at Corinth, when 
opposed and assailed by the blasphemous Jews, he 
shook his raiment, and said unto them : " Your blood 
be upon your own heads — I am clean." 

This is the true model for a minister of the Gospel ; 
this is genuine eloquence ; this is what Demosthenes 
denominated action. Instead of Felix trembling at 
the present day before Paul, every Paul trembles be- 
fore every Felix — man before man, and in the presence 
of his God. The charge against him was, that he per- 
suaded men to worship God contrary to the law ; the 
charge that might be truly preferred against some ot 



FORENSIC ELOQUENCE. 207 

the preachers of the present clay, would be, that they 
cannot persuade men to worship God, even with all 
the aid and influence of the law. So eloquent was 
this great Apostle, that we believe there is but one 
recorded instance, of his having upon any occasion, put 
a single hearer to sleep, though he awakened many to 
the joys of eternal life. That was the instance of 
Eutichus, who, during his slumber, fell from the third 
loft and was taken up dead, and was afterwards miracu- 
lously restored to life by the Apostle. Alas ! how 
many among us, are permitted to doze through a 
drowsy discourse, " having," in the language of Dean 
Swift, " selected more secure places for theb repose, 
and choosing rather to trust their death to a miracle, 
than their revival." 

Paul fully understood the value of speech ; he was 
an orator in the best sense of the term. When assailed 
by the incensed populace at Jerusalem, and bound in 
chains, he exclaimed to the chief captain : " I beseech 
thee, suffer me to speak unto the people ;" and a noble 
speech he made. And again, when Ananias commanded 
them to smite him on the mouth, Paul said unto 
him, " God shall smite thee, thou whited wall ; for sit- 
test thou to judge me after the law, and commandest 
me to be smitten, contrary to the law ?" How utterly 
does he demolish the fawning orator, Tertullus, before 
Felix ! and how simple, yet how beautiful a defence 
he makes before Agrippa ! Nothing can surpass the 



208 THE FORUM. 

concluding appeal, in answer to the imputation of mad- 
ness, cast upon him by Festus : " I am not mad, most 
noble Festus, but speak forth the words of truth and 
soberness ; for the king knoweth of these things. 
King Agrippa, believest thou the prophets ? I know 
that thou believest." Agrippa said unto Paul : "Almost 
thou persuadest me to be a Christian." " I would to 
God," replied the Apostle, " that not only thou, but 
also all that hear me this day, were both almost and 
altogether such as I am, except these bonds." 

Paul's intellect was of the highest and noblest order ; 
he had as much force as Demosthenes ; as much grace 
as Cicero ; and much more artlessness and moral cou- 
rage than either. Inferior to them, as he no doubt 
was, in worldly learning, and avoiding display as in- 
compatible with the cause of his Divine Master, it is 
still much easier to conceive of their rare and combined 
perfections, than to elevate the mind to Ms, So much 
thought, so much simplicity, so much zeal, so much 
humility, so much reliance upon heaven, so little upon 
himself! How widely and how favourably distin- 
guished in all those characteristics from the vain-glori- 
ous Roman, and the arrogant and ferocious Greek ! 
They mounted to the temple of fame, on the necks of 
an admiring populace. He scaled the glorious Empy- 
rean from beneath the foot of the oppressor ! They 
grew great amidst the acclamations of tributary thou- 
sands. He carved his way to immortality, through 



FORENSIC ELOQUENCE. 209 

execration, persecution, and imprisonment ! They lived 
for worldly glory and display ; he, for the glory of the 
Saviour and eternal life ! 

Is it not remarkable, that this most eminent and 
eloquent Apostle, whose speeches and whose epistles 
are inferior to none of the ancients, should have been 
so overshadowed in this world's vision, by the reputa- 
tion of more lofty and presumptuous, but still inferior 
men ? The secret consists in this : the Christian de- 
spises worldly renown, and fixes his hopes above; that 
anticipated reward is sufiicient for him in the Avorld's 
eyes ; and it is not more incompatible with the saintly 
character to desire the world's applause, than it is with 
the world's character to accord it. 

But descending from the Divine science, as it may 
be called — ^from this mountain, this sky-capped moun- 
tain, into the sequestered vale of life ; from public, and 
turbulent, and ambitious scenes, to private, retired, and 
social relations, has eloquence still lost its charm ? On 
the contrary, it is there that we witness its chief 
beauty, its supreme and most despotic control ; it is 
the very life of the circle that revolves around it ; it 
is the sun of the whole system, and imparts to it its 
light, its heat, and its motion ; it is ever changing, 
and ever new. 

" Now 'tis like all instruments, 
Now like the lonely lute ; 
And now 'tis like an angel's song, 
That bids the Heavens be mute !" 



210 THE FORUM. 

See the lawyer in. his office; the pastor at the family 
fireside ; the priest at the confessional ; the father in 
the bosom of his family ; the physician in the chamber 
of sickness, or of death — is eloquence nothing there ? 
It has, in all these positions, sustained many a droop- 
ing, and subdued many a proud spirit; banished des- 
pair from the bosom, and bound up many a bruised and 
broken heart. Is it nothing in enforcing the yirtues, 
or administering the hospitality of the domestic board ? 
Nothing, in soothing and blending unsocial feeling into 
harmony ! Nothing, in infusing the delightful princi- 
ples of morality and rehgion into those immediately 
around us ? Nothing, in the familiar colloquial inter- 
course of social life ? Nothing, in winning — nothing, 
in improving — nothing, in preserving the affections of 
those we love ? Nothing, in stimulating or sustaining 
virtue ? Nothing, in rebuking and repressing vice ? If 
eloquence be incompetent to all, or any of these tasks, 
no human power is adequate to their accomplishment. 
Printing will not answer ; there the press cries craven, 
and gives up the conflict. Writing will not answer ; 
for before the essay is prepared, the occasion to Avhicli 
it is directed has too frequently passed away. In a 
word, wealth, and power, and authority, are weak- 
ness, vanity and folly, when confronted by learning 
and eloquence. A triumphant orator is as far supe- 
rior to a successful general, as are the enjoyments of 
the immortal mind, superior to the gratification of the 
depraved appetites of our decaying bodies. 



FORENSIC ELOQUENCE. 211 

Nay, who would not rather be the most eloquent 
man of his day, than even the President of the United 
States ? The latter sways a political authority, for 
whicli he depends upon the pubhc voice — the former a 
moral and intellectual sceptre, which he sways in his 
own absolute right. 

To conclude. In all the pursuits of life, then, we 
should be ever mindful of all the advantages of elo- 
quence ; improve them daily, hourly, unceasingly. 
There is no situation so mean, that they cannot dignify 
it; there is no elevation so high, that they cannot exalt 
it. Without them, knowledge is the miser's wealth, 
and only cheers the owner; with them, the treasures 
of the mind are scattered or diffused to the four quar- 
ters of the earth, and having imparted their benefits to 
others, like the bread cast upon the waters, shall be 
returned after many days. Oratory, however, let me 
finally observe, is not a mere castle in the air — a fairy 
palace of frost-work, destitute alike of substance and 
support. It may rather be compared to a magnificent 
temple, constructed of Parian marble, sustained by 
pillars that shall endure for ages, exhibiting the most 
exact and admirable symmetry, and combining aU 
orders, varieties, and beauties of ai'chitecture. 



CHAPTER 11. 



REVIEW OF THE PRACTICE OF THE LAW BEFORE THE REVOLUTION— AND 
JUDGES AND MEMBERS OF THE BAR. 



In his '' Lives of the Chancellors and Chief Justices 
of England," Lord Campbell repeatedly complains of his 
inability to trace them through the lapse of more than, 
five centuries. But although it is certainly easier to 
prosecute our researches through little more than a cen- 
tury and a half, than to thread the labyrinth of five cen- 
turies, yet from the records and cotemporaneous history 
derived from the British archives, a much better clue 
is to be obtained, than any possessed by us. But, 
without repining at evils which we cannot cure, let us, 
with the imperfect lights and means supplied, take a 
hasty retrospect of what may be called, the birth and 
infancy of the State of Pennsylvania. Indeed, the 
very difficulty at this time encountered, in procuring 
authentic information upon the subjects proposed to be 



BEFORE THE REVOLUTION. 213 

treated of in this chapter, is strong evidence in itself of 
the necessity that exists for redeeming without delay, 
the earlier events of our history from the grasp of for- 
getfulness. Every passing day increases the labors 
of research, and a few years will obliterate and con- 
sign to utter oblivion, all that we should desire to 
remember and preserve of our past annals. The ori- 
gin of societies, communities, and nations, like the 
youth of individuals, gives some denotement of their 
future career, and furnishes to others those examples of 
wisdom and virtue, which it would be proper to emu- 
late ; or those instances of folly or vice, which it is 
commendable to avoid. When we are told that Penn's 
treaty with the Indians was the only known treaty, 

" Never sworn to, and never broken,"* 

we may well be proud of the great founder of our 
native State, and be at no loss to understand the in- 
fluence she has alwaj^s exercised and maintained, in 
regard to all the other colonies. We may readily com- 
prehend her peaceful tendencies, her commercial repu- 
tation, her civil and religious liberty, her moral and po- 
litical ascendency, her probity and patriotism. Honest 
and conscientious youth, is at least an earnest of pious 
and exemplary old age. But without further prelude, 
let us approach our task. 

* Voltaire: "Dixon's Life of Penn," p. 216. 



214 THE FORUM. 

Any detail of the earlier history of the ante-Revo- 
lutionary courts, would afford no great interest, and 
could not now be given with much accuracy. Mr. 
Penn's religious sentiments made him desirous of 
having the civil differences of his colonists settled in 
an amicable way, or at least, by tribunals having as 
little of the name, machinery, and " terrors of the 
law," as possible. In a community composed chiefly 
of Quakers, a good many disputes, though wholly secu- 
lar, were settled by " Friends," either in " meeting" or 
out of it ; and the habits and spirit of their amicable 
mode of adjustment, extended beyond the limits of 
this peaceful sect. 

We find " the Peace-makers," as they are called, an 
established part of Mr. Penn's judicial machinery in 
1683. Of whom, or of how many persons, this body 
was composed, we know not ; their office would seem 
to have been diplomatic, quite as much as judicial, and 
to have depended more on their address, than on their 
law and learning. They probably negotiated, going 
from party to party, and heard matters privately, and 
prior to the litigants being handed over to the " tor- 
mentors," like to which Scriptural and Jewish institu- 
tion, the " County Court" would seem in the early 
times of the colony, to have been very much consi- 
dered. The Provincial Minutes,* for example, tell 
us that, when one Richard Wells made his complaint 

* Vol I., p. 34. 



BEFORE THE REVOLUTION'. 215 

against one of his neighbors, it was " ordered that he 
be referred to the Peace-makers, and in case of refusal, 
to the Countif Courts So, in another case,'''" we find 
the parties " advised to make the business up hehvecn 
themselves ; otherways to have a trial by the " County 
Court." We find, also, at a later date, some proceed- 
ings of the Provincial Council, then the High Court of 
Errors and Appeals — Mr. Penn, himself, presiding as 
Proprietary and Governor — showing the same disposi- 
tion to dispense with the judicial apparatus deemed 
in modern times, so great a blessing : they are, in the 
case of "Andrew Johnson, pffi", v. Hance Peterson, 
deft," a case heard, considered and adjudged, on "the 
13th day of the Third month, 1684." We have no 
" statement of the case," as reporters call it, nor any 
arguments of counsel, but the decree is given with 
great clearness ; it is worthy of transcription, not only 
as shoAving how far the modern formalities of jury 
trials, &c., were thought to be necessary in the State, 
but also as proving to how early a date that ca?'e of 
judicial 7-ecords, which is so peculiar to Pennsylvania — 
and has been so often mentioned to its honor in other 
States, and at Washington — was observed and enforced 
by William Penn himself. The decree is :f " The 
Governor and Council advised them to shake hands, 
and to forgive one another; and ordered that they 
should enter into bonds for £50 a piece, for their good 

* Vol. I., p. 51. t Id., p. 52. 



216 ' THE FORUM. 

abearance, ^Y''^ accordingly they did. It was also 
ordered that the records of court concerning that busi- 
ness, should be burnt." 

Mr. Penn took great care, also, that the bar — so far 
as a necessity existed for there being a bar at all — 
should be a very pure ministry indeed, and be inte- 
rested in the settlement, instead of in the fomentation of 
quarrels. Such decisions as Foster v. Jack,* in which 
" the dignity of the robe" was scouted, and the profes- 
sion put much upon the footing of "any mechanical art;" 
or, as Ex parte Plitt,f by which it was decided that 
counsel might lionorahly "go snacks" with client, will 
find no precedents in our early laws and practices. It 
was enacted by lawj in Pennsylvania, as early as 1686, 
" for the avoiding of too frequent clamors and manifest 
inconveniences, which usually attend mercenary plead- 
ings in civil causes," " that noe persons shall plead in 
any civill causes of another, in any court whatsoever 
within this province and territories, before he be bo- 
lemnly attested in open courts that he neither directly 
nor indirectly, hath in any wise taken, or will take or 
receive to his use or. benefit any reward ndiat soever, for 
Ms soe pleading, under the penalty of £5, if the con- 
trary be made appear." And it had, prior to this, by 
the laws agreed upon in England,§ been enacted " that 

* 4 Watts, p. 337. f 2 Wallace, Jr., p. 454. 

t Provincial Minutes, vol. I., p. 122. 

^ Hall and Sellers's Laws ; Appendix bv Kinsey, C. J., p. 3. 



BEFORE THE REVOLUTION. 217 

in all courts, all permns^ of all persuasions, may freely 
appear m their own waf/, and (wcordlng to their own 
manner, and there -permnalbj plead their own cause 
themselves, or, if unable, by \h^\Y friends r 

Coming to a later date and more advanced state of 
the colom^, we have, as early as 1705, the Arbitration 
Law of that 3^ear, declaring that parties having ac- 
counts to produce one against another, may consent 
to a rule of court for referring the adjustment thereof 
to certain persons, mutually chosen hy them in open 
court, whose award, when approved of by the court 
and entered upon the record, should have the effect 
of a verdict given by twelve men.* Now, by these 
various manifestations and enactments, lawyers and 
juries were meant to be dispensed with in a body, and 
suitors being without lawyers, the courts were, of 
course, a good deal without law. Immense numbers 
of such disputes as arose in those days of simple con- 
cerns, where the Legislature of the State declaring, 
that "whereas, there is a necessity, for the sake of 
commerce, that the growth or produce of the territo- 
ries annexed to Pennsylvania, should pass in lieu of 
money,'' enacted, that " wheat, rye, Indian corn, barley, 
oats, pork, beef, and tobacco, shall be accounted current 
pay, at the market price,"f — disputes, chiefly of fact, 
and involving no points which a good understanding 
and familiarity with business could not adjust — were 

* Bradford's Laws of 1728, p. 73. f Id., p. 25. 

VOL. I. — 15 



218 'f^^ FORUM. 

settled by "reference," without any lawyers at all. 
And in the provincial days of the eighteenth century, 
such men as Joseph and Edward Shippen, Charles 
Willing, Israel Pemberton, Samuel Powel, John Stam- 
per, Peter Baynton, John Kearsley, Clement and "Wil- 
liam Plumstead, with a few others, made, pretty much, 
a court de facto, under the arbitration law, by which 
immense numbers of disputes were finally and wisely 
settled, just as in later days we know that Robert 
Morris, Tench Francis, Archibald McCall, Francis 
Gurney, John Nixon, and a few others known in our 
city history, who were constantly acting as referees, 
settled the great questions of commercial diiference 
between their brethren of the Exchange, much better 
than the best courts could have done it for them. 

The spirit of that fiction of law, known as Quo mi- 
nus, by which suitors in England brought their-cases — 
though not cases of revenue — into the Exchequer, 
seems to have been invoked at an early date in Penn- 
sylvania, for the advancement of references. The 
Arbitration Act of 1705, we have seen, contemplated 
references only where the parties had "accounts to 
j)roduce one against another." But in practice, the 
Act was extended to other actions. It was probably 
found necessary to do so, to give better equitable relief 
than we could otherwise get. We have the record of a 
reference, from the " Supreme Court, April term, ITGo," 
in which Timothy Peaceable, lessee of John Fox, sues, 



BEFORE THE REVOLUTION. 919 

among other persons, our respected "Benjamin Frank- 
lin/' philosopher, &c., in ejectment ; the property, whose 
title was involved, being " a certain lot of ground, situ- 
ate on the south side of High street, between Third 
and Fourth streets," &c. It was, we see, part of the 
well known property, along what is now called Frank- 
lin Court, and on which Dr. Franklin had his residence. 
The referees w^ere Thomas Willing, Philip Syng, and 
Redmond Conyngham. Observe the award ! dated Jan- 
uary 25th, 1766. What Lord Cha^icellor ever made 
a better ? " We do find," says this decree, " that the 
title to the same lands and hereditaments is in the 
plaintiff; but that, nevertheless, the defendants have 
an equitable claim thereto ; wherefore we are of opi- 
nion, that in justice and equity the lessors of the 
plaintiff ought to sell and dispose of the said lands and 
hereditaments to the defendants ; and we do accord- 
ingly award, that the lessors of the plaintiff shall, on 
the payment of the sum of five hundred pounds lawful 
money of Pennsylvania, to them, by the defendants, 
convey and release to the said defendants respectively, 
the said several lots and lands in fee ; which said sum 
of five hundred pounds, we do settle and fix as the 
price, which ought in equity and good conscience, to 
be paid by the defendants to the lessors of the plain- 
tiff, in lieu of the lots and lands aforesaid; and do 
accordingly award the same to the plaintiff, in satisfac- 
tion of the said lands and hereditaments. We are 



220 THEFORUM. 

likewise of opinion, that in the conveyances and 
releases of the lessors of the plaintiff to the defend- 
ants, there ought to be contained covenants of warranty 
against themselves and their heirs, and the heirs of 
George Fox, the original purchaser. Lastly, we do 
award, that the costs of suit and the necessary ex- 
penses of the referees, be j^aid equally ly both parties^ 

So satisfactory does this system of "reference," 
established by our ancestors in 1705, appear to have 
proved itself, both to the profession and people, that 
it long survived the Revolution; and as lately as 
1790, when such a man as Mr. Shippen was presiding 
in the Common Pleas, and Chief Justice M'Kean, with 
Ms able associates, were on the Supreme Bench, we 
find it still greatly resorted to. And so well-grounded 
had it become, that one motive of Mr. Dallas in pub- 
lishing his Reports in 1790, is stated by him in his 
preface, to be, their " use in furnishing some hints for 
regulating the conduct of referees, to whom, according 
to the present practice, a very great share of the ad- 
ministration of justice is entrusted." 

We may find, perhaps, another reason — more flat- 
tering to the bar — for the great extent to which dis- 
putes, in our earlier history, were peaceably adjusted. 
The bar, in the days of the Province, was much more 
than now, the profession of a special social class. The 
honor of the barrister was united with the name* of 

* See inscription on the monument of Samuel Hassei, in the grounds 



BEFORE THE REVOLUTION. 221 

the barrister, and when men by any possibility, could 
settle their disputes without the aid of the lawyer, or 
needed his aid only in the character of a friendly coun- 
sel and intercessor, the courts and the bar both felt, 
we may presume, that their highest offices were per- 
formed. We have seen the terms of an early enact- 
ment, about " mercenary pleading ;" and the spirit of 
the law remained after its letter may have been re- 
pealed. 

With such laws, and such popular dispositions as we 
have indicated, we can understand what is otherwise 
difficult of comprehension, that the Court of Common 
Pleas, prior to the Revolution, had scarcely ever* a 
single lawyer upon its bench ; that to be " learned in 
the law," was not a requisite for appointment to the 
judicial office ; and that, as we believe, the bench was 
composed — in the associate part of it, certainly — of 
such aldermen of the city, or justices of the peace 
from the county, as chose to set in banc, in a solemn 
way. From the causes mentioned, however, the 
court, in its earlier history especially, Avas relieved 
of much that would otherwise have engrossed its time ; 
and of much, perhaps, that if tried with the technical 
formality of English law, it would have been hardly 
able to go through. In addition to this, the Recorder 
of the city, who was usually, if not always, a lawyer, 

of Christ Church, in which this old member of the profession is styled 
" Barrister-at-law." 



222 THE FORUM. 

presided in the Mayor's Court, as it was then and long 
afterwards called; a court in which the jury w^ere 
regularly summoned by the mayor's writ. To this 
jurisdiction belonged the trial of most crimes commit- 
ted within the old "City;" then — as being the only 
populous part of the county — the chief seat of crime ; 
so that the judges of the Common Pleas, sitting as 
the Quarter Sessions, were relieved of much of the 
most disagreeable, as well as the most onerous, busi- 
ness which now afflicts them. The Court of Common 
Pleas, under its different forms of Orphans' Court or 
Quarter Sessions, was occupied, it will be thus seen, 
chiefly with such civil affairs as required the executive 
order and action of the court, rather than its judicial 
function ; such as the laying out of roads, the appoint- 
ment of certain city officers, perhaps ; with many other 
duties of like kind, now transferred by the progress of 
the times, to the wisdom of the people ; the granting 
of licenses, discharge of insolvents, appointments of 
guardians, confirmation of partitions, regulation of the 
wharves, I suppose, and other matters now attended 
to by the wardens of the port. Great trusts, no doubt, 
were reposed in them, and their jurisdiction was at 
once legislative and judicial; common law, equitable 
and prudential: but in earlier times especially, it was 
a jurisdiction Avhich required the arhiirium boni viri 
much oftener than such learning as is now necessary 
for the proper discharge of the judicial office. 



BEFORE THE REVOLUTION. ' 223 

We have an obituary, in print, of Isaac Norris, for 
some years — made by commission, we presume, rather 
than by special education in the law — though of this 
we are not certain — the " President of the Court." He 
died in June, 1735, and the obituary referred to, in 
giving a beautiful character of him, rather indicates at 
the same time, what the office of the judicial function- 
aries of that day required. He was a merchant ; as 
he was also, for upwards of thu'ty years, a member of 
the Provincial Council. "His great abilities," says 
this obituary, " in the discharge of his duty in each of 
these stations, made him to be justly esteemed one of 
the most considerable men in the government; his 
courteous deportment and affability gained him the 
love and respect of many. A quickness of apprehen- 
sion, liveliness of expression, and soundness of judg- 
ment met, and were remarkably conspicuous ui this 
good man ; nor did it appear that the age of sixty-four 
had impau'ed any of these valuable qualities. None 
were more frequently applied to for composing differ- 
ences than Mr. Norris, and few succeeded better in 
good offices of this kind ; his reputation for sense 
and integTity being so well established, that both par- 
ties willingly submitted themselves to the determina- 
tion of his superior understanding." No mention 
seems to be made of his learning or abilities as a Icav- 
yer ; and it was rather, we suppose, as a respected 
citizen and a good man, vested with an official posi- 



224 THE FORUM. 

tion, that his judicial qualities had their field of useful 
exercise. He valued his law books at £56, and we 
have seen some of them in this day with his name in 
them, but have never seen any evidence — as we have 
in the case of his cotemporaries, Kinsey and Hamilton 
— of what in this day we should look for, as the proofs 
of much professional learning. We cannot say, how- 
ever, that it may not have existed ; a century and a 
quarter rises up between this time and his, to inter- 
cept our view.* 

Indeed, at that day, law itself was a simpler sci- 
ence than now ; we had not a single volume of reports 
in America, and only about fifty from England. We 
had not yet fairly passed from the feudal into the 
commercial existence. The rules of evidence were 
much less attended to ; and if a man understood a few 
Acts of Assembly, and knew Dalton's Justice of the 
Peace, he had all the legal education which any one 
could teach, and almost all that any could attain. 

* There is a portrait — ^if we remember — of Mr. Norris, in the Gallery 
of Portraits: — now quite numeroiis — in the Hall of the Historical Society 
of Pennsylvania. Whether an original, or copy, we know not. Which- 
ever it be, it has no considerable merit as a work of art, and less interest 
otherwise, than most of the portraits in that collection. Tlie dress 
is plain, in the Quaker style, and void of any of the marks of a 
judicial costume; the countenance, owing, perhaps, to the artist 'is want 
of skill, is impressed by nothing remarkable, except the characteristics 
which are usually supposed to indicate his religious sect. We presume 
the portrait hardly does its subject justice. 



BEFORE THE REVOLUTION. 225 

There is no doubt, indeed, however much our pride 
may be gratified in magnifying the greatness of our 
early colonists, that for the first ten or twelve years 
after the charter, the legal proceedings were of a very 
simple and unlearned kind, and indicate a state of 
society, generally^ pretty coarse and ignorant; and 
sometimes, pretty ridiculous also. Pennsylvania was 
in that day of the kind of nation, in which "the 
one-eyed are kings ;" and when we hear of lawyers 
and of judges, we must not look for Tilghmans, for 
- Binneys, for Washingtons, or Marshalls. The town, as 
yet, was not much more than a collection of huts or 
log houses, and its population an association of traders, 
adventuring their fortunes in a region from which the 
savages were scarcely dispossessed. They brought 
large names from England, and gave them to humble 
things. Some idea may be formed of what the judi- 
cial labors of a chief justice came to, from such a fact 
as this, that at a much later day all the proceedings of 
so considerable a jurisdiction as the Orphans' Court — 
for the space of twelve years, from 1719 to 1731 — 
though the petitions, evidence, and orders in each 
case, are set out very much more full than is now cus- 
tomary, occupy but sixty-nine pages of a docket, whose 
leaves were of the size only of ordinary cap paper. 
Large margins also, are left at the top, bottom, and 
sides, and the lines having large spaces between them, 
and being written mostly in court-hand, make what 



226 THE FORUM. 

printers would call very "lean" matter. About five 
small pages, therefore, contain the whole records of a 
year.* No great observance of formahties, I presume, 
took place in any court, either civil or criminal. A 
few years ago, it is known that many of the early 
records, both civil and criminal, of the city, were deli- 
vered over by the county commissioners of that day 
to the janitor of the public buildings, for such custody 
as this functionary chose to make of them. Finding 
them useful for nothing so much as to kindle the fires 
of his court rooms, this officer soon applied most of 
them to that purpose. Happening one day to hear 
what he was doing, a gentleman of the bar gave direc- 
tions for the rescuing of a good many wliich were 
curious either in illustration of our early society or of 
our provincial law, whose progress was of course much 
concurrent with it. They are now bound in a volume, 
in the possession of the Historical Society of Pennsyl- 
vania. Copies of a few of them, cliiefly presentments 
of the grand jury, between 1700 and 1704, may be 
seen in the Appendix A, and will well repay the 
reading of them. They are chiefly presentments of 
offences, the notice of which could belong only to a 
very primitive state of society — of one man, for 
" swaring three oths in the market place, and also for 

* For a particular account of these records, see note to Cromwell v. 
The Bank of Pittsburgh, 2 Wallace, Jr., 589. 



BEFORE THE REVOLUTION. 227 

uttering two very bad curses ;" — of another, for "being 
maskt, or disguised in woman's apparel ; it being against 
the law of God, the law of this province, and the law 
of nature, to the staining of holy profession, and in- 
coridging of wickedness in this place." The indict- 
ments are generally very short, without any technical 
language whatever, and they are often destitute of 
what was then in England, and has long since been 
deemed here a requisite legal precision ; though, as 
"will be seen by reference to the Appendix, wdien any 
want of substance was pointed out by the bar, the 
court appears to have sustained the objection. 

After 1704, the indictments, which are drawn by 
one of the Ashetons, are entirely scientific ; and indeed 
all the proceedings of the officers or the court — pro- 
ceedings, I mean, only clerical — appear in general to 
be good. The indictments after this year, however, 
present, equally with these before them, a curious 
record of the times, though less than the earlier ones, 
such records of the law. There are great numbers of 
them for forestalling the markets and regrating; al- 
though the extent of the purchases do not, from the 
specification of the indictments, appear to have been 
alarming. In the 33 Geo. II., Mrs. Margaret Hum is 
presented for, that " in open market she did buy, re- 
grate, and into her hands and possession did get and 
obtain forty fishes, called shad." The offence is charged 
to have been committed on the ^^ili of April. Francis 



228 THE FORUM. 

Johnson, indicted at the same time, was a greater ope- 
rator, for he had obtained one hundred ; but both got 
them on the same 30th of April, when, unless the 
season was backward, or the Delaware less prolific 
than now, the deprivation to the public would not, we 
think, have been great. John Baskall is presented for 
having, on the Wi of Fehruary^ regrated "ten rock 
fish ;" a more serious offence against any gentleman, 
who, in that cold month, was going to give a dinner : 
and Lewis Slammin is presented for regrating " four 
bushels of apples." Many housekeepers, just now, 
would commend these precedents to the prosecuting 
attorney. About the middle of the century, even 
before "the affair of 1745," I find several of the bre- 
thren of St. Andrews in trouble ; some of them are in 
advance of Mr. Thackeray, and are presented for hav- 
ing publicly, and with a view to bring our Sovereign 
Lord, the King, into contempt, said, " G — d d — n 
King George." And one for singing a song, " Charlie 
shall have his own again;" Ms name was Alexander 
Murray ; all honor to his memory ! The juries, how- 
ever, both grand and petit, seem, for some years, not 
to have made an advance in proportion to that of the 
king's attorney, if we may credit the presentments. 
It appears by one of them, that on the 21st of Janu- 
ary, 1714, Peter Evans, Esquire, sends to Francis 
Phillips a challenge, thus expressed : 



BEFORE THE REVOLUTION. . 229 

"Sir: — You have basely scandalized a gentlewoman that I have 
a profound respect forj and, for my part, I shall give you a fair 
opportunity to defend yourself to-morrow morning, on the west side 
of Jos'' Carpenter's garden, betwixt seven & 8, where I shall expect to 
meet you gladlo cbictus. In failure whereof, depend upon the usage 
you deserve, from 

" Yours, &c., 

"PET. EVANS. 

"Jan. 21st, 1714. 

" I am at the Pewter Platter." 

Mr. Francis Phillips, who is described in the venire 
as " clerk," and who, if he was not in holy orders, 
acted, we must think, in a most ungentlemanhke w^ay, 
handed Peter Evans over to the grand jury, who found 
a true bill. Having pleaded non culp., he was regularly 
tried : the jury found a special verdict, as follows : — 

" We, of the jury, do find that Peter Evans, in the 
indictment mentioned, did send a letter in writing to 
Francis Phillips, containing these words : — [letter 
quoted.] If, upon the whole, the court do judge the 
words contained in the said letter to be a challenge, 
then we do find the said Peter Evans guilty; but if 
the court do judge the words contained in the said 
letter are no regular challenge, then we do find the 
said Peter Evans not guilty." 

The next entry that we find, is — " Curia advisari 
VULT ;" and so the case seems to have ended. Whether 
it was the law of the case, or the honor of it — which 



230 THE FORUM. 

is the more probable — that overcame the court and 
jury, and caused the c. a. v., the record does not show, 
no judgment appearing from it to have been given. 

But we find this same " Francis Phillips, clerk," — 
who, if he w^as a clergyman, must have been one of 
the few disreputable clergymen who were here before 
the Revolution — very soon afterwards, the subject, him- 
self, of an indictment, for having, " as much as in him 
lied," attempted " to deprive, annihilate, and contemn the 
authority of the recorder, mayor, and justices of the 
peace," by saying, " Tell the Mayor, Richard Hill, and 
Robert Asheton, the Recorder, that I sa}^ they are no 
better than rogues, villains, and scoundrels." It would 
seem, therefore, that if Peter Evans did not win the 
battle " on the west side of Jos'" Carpenter's wall," he 
did clearly so, before the court and jury assembled to 
convict him.* 

*We are wholly unable to trace this gentleman, Mr. Peter Evans, and 
therefore commend his memory to the Historical Society; a bodyv\hich, as 
at present managed, is really useful. A person named Evan Evans, was 
an early rector of Christ Church, and we are a little afraid that Peter was 
his son ; especially as we find a gentleman so named was a member of that 
parish,a contributorto the completion of the churchin 1739, and at different 
times the rector's, and also accounting warden. If Mr. Francis Phillips, 
"clerk," was a clergyman of the established church, our suspicion is con- 
firmed by the place fixed for the combat. " Joshua Carpenter" seems to 
have been a great friend of the clergy, and unlike some of the wardens 
in later days, fond of entertaining them. The Reverend Mr. Talbot, an 
English clergyman of that day, was, he tells us, " very kindly and hospi- 
tably entertained by Mr. Joshua Carpenter, at his house j" where, we 



BEFORE THE REVOLUTION. 231 

The courts appear to have steadily resisted the 
popular demand for cruel punishments. In 1717, the 
grand inquest, with so respectable a citizen as JNIr. Wil- 
liam Fishbourn as its foreman, presents as follows : — 
" Whereas, it has been frequently and often presented 
by several former grand juries for this city, the neces- 
sity of a ducking-stool and house of correction, for the 
just j)unishment of scolding, drunken women, as well 
as divers other profligate and unruly persons in this 
place, who are become a public nuisance to the town 
in general; therefore, we the present grand jury, 
earnedly again present the same to this Court of Quar- 
ter Sessions, desiring their immediate care ; that 
those public conveniences may not be longer delayed, 
but with all possible speed provided for the detection 
and quieting such disorderly persons." And a few 
years later, a second inquest, with Benjamin Duffield 
at its head, " taking in consideration the great disor- 
ders and the turbulent behaviour of mamj people in 



learn, that he lodged for six weeks at a time. The Eeverend Mr. Fran- 
cis Phillips was, perhaps, a guest of Mr. Carpenter also, and not to give 
the reverend gentleman too long a walk before breakfast, on a cold prin- 
ter's morning, (21st January, 1714,) Mr. Peter Evans considerately invites 
him, just to step out "betwixt seven & 8," gladio cinctus, "on the west side 
of Jos"' Carpenter's garden;" where he may have "an opportunity to 
defend" himself. 

Tkere was a Peter Evans, who for many years, was Register of Wills 
of the province ; but he, we think, was not this gentleman. 



232 THE FORUM. 

this city, present the great necessity of a ducking- 
stool for such people, according to their deserts." 

It would appear by these records, that the grand 
inquests of Pennsylvania considered the offices of this 
" conveniency" much greater, than those which com- 
mon law assigned to it ; to wit — " an engine of correc- 
tion," for "common scolds." One inquest regards it ap- 
parently, as having the qualities of the " fire ordeal," 
and recommends it as a "detective" operator; and 
the other seems to regard it as proper to be applied to 
all " turbulent people," of either sex, in the city. 

Whether this last recommendation affected so many 
interests as to awaken opposition, or whether the court, 
of its own motion, resisted these earnest and repeated 
demands of the jury, we cannot teU. The ducking- 
stool, we think, was not adopted. 

When crimes, however, were of a kind really to 
demand severity, the court appears not at all to have 
withheld it. In 1729-30, we find, for example, 
Charles Gallahan sentenced, for a criminal offence, 
"fifty pounds; to receive at the carfs tail, thirty-five lashes 
on his bare bade round two squares of this city, and pay 
the costs of prosecution." The court exercised also 
an excellent discretion, it appears ; for when " John 
Hendrick, late of Philadelphia, laborer, on the 21st 
day of October, (being the first day of the week, 
called Sunday,) in the seventh year of the reign of 
of our Lord George the second, by the grace of God, 



BEFORE THE REVOLUTION. 233 

of Great Britain, France and Ireland, king, defender 
of the faith, at the city of Philadelphia aforesaid, of 
his otvn impious potver and authority^ voluntarily, 
openly, publicly, and contemptuously molested, vexed 
and disturbed, a certain congregation of people, called 
Quakers, in a certain meeting-house in the said city, 
assembled together in the discharge of their duty, and 
in the worship of God," the said John Hendrick is not 
sentenced at all, as in the last case ; but in a spirit 
of very Christian moderation — suggested, likely, by 
" Friends" themselves — to the payment of five shil- 
lings, and " to stand in the pillory one hour, with the 
offence wrote on his head." So far for these curious 
records — commended, as we have seen, by our county 
commissioners, to the useful purpose of lighting fires. 
We perceive, by the legislative enactments of the 
early part of our provincial history — especially many 
Acts passed in 1705 — as the Act for taking lands in 
execution, &c. ; the Act about Arbitrations and De- 
faulking ; the Act concerning the Probates of Written 
and Nuncupative Wills, and for confirming devises of 
Lands, and several others, some of which were repealed 
by the queen in council ; some of which remain at this 
day in force as original enactments, and others of which 
have been incorporated, almost verbatim, into our Re- 

* We doubt if it is good law — it certainly is questionable divinity — 
tbus to ignore " the malice and instigation of the devil." 
VOL. I. — 16 



234 THE FORUM. 

vised Code — ^tliat there was no want in the legislative 
council, at an early date, of good legal mind and good 
legal education. But whoever the lawyers were, they 
seem to have been inclined to make a Pennsylvania 
system of jurisprudence, rather than to introduce the 
Enghsh ; and every thing relating to the jurisprudence 
of the earlier years of the century, has a very plain 
and practical form. We take it to be possible, that we 
owe these laws to Andrew Hamilton, for some years, 
with John Kinsey, the only great lawyer, it would 
seem, in the province.* They bear the impress, we 
think, both of his intellect and his character, and this 
idea derives confirmation from what is said of him in 
a printed obituary. To whomsoever we owe the mo- 
delling of our early system, he seems to have had a 
task of difficulty. The common people were not in- 
clined to the English refinements, and the queen or 
king in council generally repealed our Acts, which were 
passed to supply them. 

About the year 1745, however, there appears to have 
been adopted by at least a portion of the bar, more 
dignified conceptions of the law, and a more scientific 
sort of professional practice than had hitherto pre- 
vailed, among such lawyers even as Andrew Hamilton 
and John Kinsey. Indeed, a great change appears 
about this time to have taken place m the " stratifica- 

* See post; in speaking of tlie Vice-admiralty Court. 



BEFORE THE REVOLUTION. ' 235 

tion" of our colonial society generally. Nearly two 
generations had gone since the colony was founded ; it 
had greatly increased in wealth and population. The 
exclusive regime of the Quakers had passed away. 
The Church of England was, perhaps, coming into the 
ascendant, if not of numbers, yet of liberality, intelli- 
gence and education. In 1748, Edward Shippen, 
afterwards Chief Justice, had been sent to the temple 
to be educated; as at a later date was Thomas Wilhng, 
originally designed for the bar; and at a still later, 
Joseph Reed, Benjamin Chew, Edward Tilghman, Jared 
IngersoU, William Rawle and others. In 1745, we 
find the lawyers barring entails, for the first time, 
by common recovery;* a process wdiich, before that 
time, they would seem not to have sufficiently under- 
stood to resort to, since we know that entails had 
been extremely odious, and two ineffectual legislative 
attempts to give power to dock them by common deed, 
had been defeated by the queen in council.f Still the 
organization of the Common Pleas remained the same ; 
the judges being yet, as before, the aldermen of the 
city and the justices of the peace from the county; 
the only difference being, we presume, that men of a 
higher grade of education and intelligence, than as a 
general thing had before been common, were now usu- 

* Lyle V. Richards, 9 Sergeant & Rawle, 332. 

t See Acts of 1705 and 1710; Hall & Seller's Laws, ApjDendix, by Kin- 
sey, p. 191. 



236 THE FORUM. 

ally invested by the government with a commission of 
the peace ; or that, in the more important cases, the 
less competent officers retired in favor of those more 
acceptable to the suitors and the council. About 
1750, we find Benjamin Franklin seated, at the age 
of forty-four, upon the bench, and we may infer that 
considerable attention to legal forms was now prevail- 
ing; as he tells us,* that "after attending a few courts, 
and sitting on the bench to hear causes," he gradually 
withdrew ; " finding that more knowledge of the com- 
mon law than he possessed, was necessary to act in 
that station with credit." We are in possession of a 
very complete record of a case, which was tried while 
Franklin was on the bench ; and in a sheet of auto- 
graphs, made and owned, as well as very highly prized, 
by the late Mr. Ingraham, but now obtained for the use 
of this work, for which it has been lithographed, may 
be seen the fac simile of his signature to a bill of 
exceptions, made from the record autograph, which is 
probably unique, it is the case of Lawrence William 
V. William TiU, No. 125, of June term, 1749 ; John 
Ross w^as counsel for the plaintiff, and Tench Francis 
for the defendant, both of them really accompHshed 
lawyers. It was a suit of unusual magnitude for the 
Common Pleas, being an action to recover £3794 195. 
10c?. sterling; and it was tried before Thomas Law- 

* Autobiography, chapter IX. 



BEFORE THE REVOLUTION. 237 

RENCE, Joshua Maddox, Edward Shippen, and Benja- 
min Franklin, Esquires, Justices. The pleadings are 
in the most regular form of the English law ; (see Ap- 
pendix B,) and numerous bills of exceptions are each 
signed by the judges. We have in this record a sin- 
gular exhibition of the social and judicial system of 
the province. Taken in connexion with the large influ- 
ence of " Friends" in the civil concerns of that day, it 
seems to present a mixture of the times of the patri- 
archal government with that of the reign of the mer- 
chant princes, and that of the highest state of artificial 
English law. We find here four persons, not one of 
whom was ever at the bar, nor, so far as we know, ever 
professionally educated, seated on the seat of judg- 
ment, hearing an important case of commerce, and ad- 
judging it by rules of scientific common law jurispru- 
dence. Let us, with a view of marking, so far as we 
can, one epoch in the history of our provincial jurispru- 
dence, record what few facts we know of these judges. 
Thomas Lawrence, whose name stands first upon the 
list, belonged to a circle of distinction, for its wealth, 
fashion, and family importance in the province, but 
was never scientifically bred, we presume, to the law. 
He is not to be confounded with his son, bearing the 
same name ; a man like his father, of reputation. The 
father, we suppose — though possibly the son — is the 
same person to whom, Franklin tells us, that he 
resigned, in 1747, the colonelcy of his Philadelphia 



238 THE FORUM. 

regiment; "a fine person," says Franklin,* and "a man 
of influence." The father, the esi^ecial subject of our 
notice, was a merchant. He appears to have been a 
religious man, and was a liberal subscriber, in 1729, to 
the completion of that church which, at the distance 
of a century and a half from the time it was built, 
remains the finest church edifice in Philadelphia; we 
speak, of course, of Christ Church. At a later date, 
his legal knowledge seems to have been called in requi- 
sition, to prepare drafts of a petition and charter for 
that corporation; a duty which he appears to have 
readily and promptly performed. He came to the 
bench, we suppose, in 1724, and died in ofi6.ce in 1754. 
Joshua Maddox, of whom we know more, was an 
English gentleman, of studious and contemplative 
tastes, liberally — but not,, we believe, professionally — 
educated in England ; a man of dignity and fortune. 
Though a scholar unquestionably, he had pursued 
commerce, as we know — and pursued it with skill, 
reputation and success. Yet he sat, as the records of 
the Orphans' Court show, from March, 1741, till his 
death, in April, 1759, a term of eighteen years, upon 
the seat of judgment, constantly partaking in its coun- 
cils and attending its adjudications ; and when he died 
at the age of seventy-four, had almost become personi- 
fied in this province with the administration of its local 

* Autobiography, chapter VIII. 



BEFORE THE REVOLUTION. 239 

justice.* Mr. Madclox, like his associate, Justice Law- 
rence, was a warden of Christ Church, in the burial- 
grounds of which, at the corner of Fifth and Arch 
streets, close by the grave of his other associate, 
Franklin, his monument may yet be seen. Edward 
Shippen, also, was a merchant — the father, we think, of 
the Chief Justice, his namesake, who afterwards be- 
came so eminent on the bench ; but he, himself, was a 
trader; and Franklin, known to the world in many 
capacities, besides those of a statesman and a philoso- 
pher, has never, we think, until we have now thus 
presented him, been known as a judicial administrator 
in the Common Pleas, Orphans' Court and Court of 
Quarter Sessions, of Philadelphia. 

Lawrence, Maddox, and FrankHn, were not only 
associates on the bench, but seem to have been other- 
wise engaged in useful labors. They were all three of 
them founders and original trustees, in 1749, of the 
University of Pennsylvania. 

* We have seen a few of his books ; among them Chrysostom's Treatise 
De Sacerdoiio, in Greek and Latin. It is filled with MS. annotations by 
the Judge, in Latin, showing that he read it carefully and intelligentlv. 
At the end of another volume from his library, a huge folio, entitled, 
" Ex]}ositio Epistolce D. Pauli ad Colossenses," by one of the Bishops 
of Salisbury, we find, neatly written, this entry by the Judge: "Perle(/i 
hiinc librum exi7nium, 16 cal, Aprilis^ 1753, J. M." His MS. annota- 
tions in this book, also, attest that he perfectly understood the intensitive 
force of "jjer, in composition." The book had been read by him, as we 
suspect, it has never been read since; though it has been in the hands of 
scholars, too. 



240 THE FORUM. 

Such was the Court of Common Pleas of Philadel- 
phia, in 1749; every vestige of its action, so far as 
the public knows, has, in little more than a century, 
become almost obliterated ; as is manifest by the sort 
of history of it which we are obliged to give, in order 
to give any history at all. Such as it was in 1749, we 
presume it remained in its general characteristics, until 
it was changed by the outbreak of the Revolution. 
How many of our provincial judges joined the cause 
of the people, we cannot state. One — of whom we 
have good tradition — having received his commission 
from the king, was not quite willing to swear allegi- 
ance against it, to the subject. The judges whom we 
find there in September, 1777, were James Young, 
John Ord, Philip Behm, Plunkett Fleeson, Benjamin 
Paschall, Peter Evans, Jesse Richards, and Da-sid 
Todd. We know no great deal, and nothing with cer- 
tainty, of being right in it, about any of these persons, 
though we beheve these are the names of men, aU 
of whom are known to antiquaries and genealogists of 
our city. If any of them were professional men be- 
fore being on the bench, the tradition of theu' fame 
has passed, in this generation, into dimness. Mr. 
Fleeson, we know, was a good deal before the pubhc, 
and was an active magistrate and in commission of the 
peace, after the Revolution, but was not upon the 
bench, that we know of. The history of the coui'ts 
after 1776, belongs, however, to a later term than that 



BEFORE THE REVOLUTION. 241 

embraced by this memorial, wliich is meant to be con- 
fined to the province alone. 

Whether the old provincial Court of Common Pleas 
contrasts to the advantage or disadvantage of some 
administrations of it that we have had since, or, under 
our popular system, are likely to have hereafter, 
every one will determine for himself. Wliatever may 
or may not have been the extent of its acquaintance 
with the artificial rules of modern law, it was no doubt 
a grave, decorous, and dignified body, competent to 
perform all the duties which came before it ; par nego- 
tiis, neque supra. Its tenure was for life. In its power 
of appointment to several offices, it was respectable 
for its public authority ; and all its incumbents were 
men distinguished for weight of personal character. 
We know little of the formalities which belonged to 
the. court room, nor indeed — unless it was in Market 
street, at the crossmg of Second street — do we know 
exactly where the court room was. We have reason 
to believe, however, that those ceremonies of respect, 
wliich the wisdom of past times thought so much con- 
nected with respect itself, were observed with becoming 
attention. An escutcheon, which has descended to our 
time, shows that the crown and royal arms ^vere placed 
behind the bench, as the emblem of its authority; and 
an ancient portrait of Justice Maddox, painted by Hes- 
seUius, in 1751, represents a venerable and benignant- 
looking man, costumed with care and dignity, in the 



242 THE FORUM. 

fashion of the day, short-clothes, rufHed wrist-sleeves, 
and a wig — not in any sort of a robe, however — with 
a velvet cap laid upon the judicial table, the top of 
which is covered with a dark cloth, the sides being 
hung with crimson velvet ; himself seated in a crimson 
velvet-covered and cushioned chair of office, the cushion 
and arm-rests of wliich are tasselled with cords and 
golden fringe. Undoubtedly it looks like a seat which 
its incumbent, when ordering it, considered that he 
would have the right to use for the residue of his life.* 



* This picture was owned, and highly valued by a descendant of Mr. 
Maddox, the late Mr. Horace Binney Wallace, a lover and judge of art. 
It is this picture, no doubt, which he refers to, in a passage in those "Lite- 
rary Criticisms" published since his death ; and in which, discoursing on 
the present modes of travel, he makes it suggestive of some fine reflec- 
tions upon the altered habits and feelings of the time. 

" It is a characteristic of this age," says the writer, " that whatever it 
does, it must do passionately. The man of the present time will not 
journey, unless it be furiously. If that grave ancestor of mine, who is 
now looking down upon me from his stately chair, with nothing ruffled 
about him but his wrists, could step out alive from the canvas and behold 
the crowded steamboat pawing madly along the water ; or the long train 
of cars shooting like a harnessed comet over the narrow road of iron, he 
would surely imagine that one side of the world had caught fire, and the 
scorched inhabitants were rushing from tiie fiames — or that some still 
more terrible catastrophe was about to happen at the other end, and man- 
kind, with a noble philanthropy, were hastening to prevent it — or, at 
least, that every person in the excited multitude was pressing forward oa 
business of a vital importance ; and he would doubtless be surprised to 
be told that those herds of men were hurried on by interests not more 
weighty or more elevated than those which occupied his own bosom, to 



BEFORE THE REVOLUTION. ' 243 

The only portrait we have, near this date, which re- 
presents the costume of the bar, is a very good one of 
Andrew Hamilton, done, no doubt, in England ; he is 
dressed in a long flowing wig, a scarlet coat, frilled 
bosom, and hands, precisely like those worn by some 
denominations of the clergy in our time. It is mani- 
fest that if this, or any thing like this, was the ordi- 
nary costume of the bar, it must have generated an 
observance of propriety in manner, which belongs to a 
different and a better school than that of the sack- 
coat and " sqush hat." Indeed, the beauty and bright 
intelhgence of his cleanly-shaven face, would present 
a contrast with many countenances now to be seen of 
a Saturday morning in our court rooms, which would 
not argue much in favor of the improved personal ap- 
pearance of the men of this generation. 

traverse in two hours the distance, which to him, followed by his careful 
servant, had often, for the mind and meditative heart, formed the improv- 
ing employment of as many days ; that one of the most tremendous 
powers in nature had been pressed into use only that men may save a 
time which they will not employ, and shorten a distance which it had 
been pleasant to prolong. An emblem, too, of the democratic spirit 
might perhaps be found in the spectacle of men pressing and pressed 
forward in masses, when before they moved with a more solitary and 
reserved independency ; in the submission of individual inclination and 
humor to the direct will of the multitude, of which they became a part ; 
the exchange of a path and a conveyance of limited capacity for speed, 
with freedom to tarry or wander at discretion, for a road and a vehicle of 
limitless power, but without the ability to stop or deviate at all ; with 
many other fancies of the like nature." 



244 THE FORUM. 

Though all the judges seem to have been engaged 
in pursuits not judicial, it is certain that their judicial 
duties were prominent matters with them, and received 
faithful and steady attention. They seem to have be- 
stowed especial attention upon the mode in which the 
judicial records were prepared, entered and preserved ; 
a matter less difficult to secure in that day, when the 
clerk was an officer of the court, subject to its control, 
and holding office usually during his life, than now, 
when he is wholly independent of the court, elected 
for a "job," and for the most part equally careless and 
ignorant of the duties he is elected to perform. We 
have looked at many of the records of the Orphans' 
Court, from 1719 till the Revolution, including the 
series of its minute books, and to any one often obhged 
to consult the judicial records of Pennsylvania in our 
own time, it is refreshing to turn to these far better 
registers, the memorials of our ancestors. ]\Iany of 
them are beautifully written in court-hand ; all of them 
are careful and legible ; and, when relating to real 
estate, are everywhere so illustrated by diagrams, as 
to show that both courts and clerk perfectly under- 
stood upon what they were acting. No person can 
examine them, and not see that attention, a sense of 
responsibility, and habits of order, must have pervaded 
the' administration of our provincial justice at the time 
of which we speak. The writs of some of the courts, 
as appears by looking at them, were engraved, and are 



BEFORE THE REVOLUTION. 245 

always sealed with care and neatness ; and when seal- 
ing-wax is used — as it constantly is — we find it to be 
that known in England, as " East India wax ;" a spe- 
cies of wax made hard with rosin, in order to resist 
the effects of heat of cHmate and pressure from the 
papers on which it is put, being packed tightly in bun- 
dles. The result is, that on many of our old court 
papers, the impression of the seal remains as "sharp," 
at the distance of a century from the time it was put 
there, as it was the hour in which it was made.'^ 

The character of the Justices of the Supreme Court 
appears to have been much the same with that of those 
of the Common Pleas, that is to say, but few of them 
had been much educated for the bar, before they were 
raised to the bench. 

James Logan, who successively filled the stations of 
Recorder of the City, Presiding Judge of the Common 

* It will give some idea of the character and capacity of the older pro- 
thonotaries, when we remember that Mr. Biddle, who was afterwards Pre- 
sident Judge of one of our Common Pleas — that of Philadelphia, we 
believe — was, for many years, the prothonotary of that same court ; and 
that Edward Shippen, afterwards Chief Justice of the State, was for a 
long terra of time a prothonotary's clerk, and also prothonotary in the 
Supreme Court. There are hundreds of writs in the handwriting of 
President Biddle and Chief Justice Shippen. We see, too, very readily, 
how such men, beginning with the foundations of the law — its forms — 
were thoroughly trained by long and good apprenticeship, before they 
came to the judicial administration of its principles ; and how, before 
they got upon the bench, they were so perfectly versed with the practice 
of the court which they were to administer. 



246 THE FORUM. 

Pleas, and Chief Justice of the Province, we know was 
fond of books ; a fine classical scholar, a good mathe- 
matician ; fond, too, of archaeology, criticism, theology, 
natural philosophy, and apparently of anatomy, also. 
Indeed, his correspondence, much of it in Latin, shows, 
it is said,* that there w^as scarcely a department of 
learning in which he was not interested. He had been 
a merchant, and though a " Friend," he also exercised 
the military office. And as we know that he held, at 
different times, the important posts of Provincial Sec- 
retary, Commissioner of Property, Receiver-General, 
President of the Council, (in which last office the go- 
vernment of the province for two years fell upon him,) 
and was withal much devoted to the agriculture and 
the improvement of Stenton, his beautiful farm near 
Germantown ; we may readily believe that, however 
imposing he may have been in his judicial presidencies, 
his legal acquirements could not have been of a pro- 
found or technical kind, nor his strictly judicial duties 
very engrossing. Of the labors of "Andrew Robeson, 
Esq.," Chief Justice in 1693, as ancient records tell us, 
we have very few records, and of Jeremiah Langhorne, 
his successor at a later day, scarcely any records what- 
ever. Except that we know they both died, we should 
scarcely know that either of them lived. Among the 
hundreds of lawyers who now belong to the bar of 

* See Sparks' edition of Franklin's works, vol. VII., p. 24. 



BEFORE THE REVOLUTION. 247 

Pennsylvania, I suppose that not five of tliem ever so 
much as even heard the names of these once well known 
Chief Justices of their State. 

John Kinsey, prior to being Chief Justice, had been 
in extensive practice, and was undoubtedly an educated 
lawyer, as well as a man of fine natural parts, and the 
same is true, of the education and practice of Chief 
Justice Chew. But William Allen, whom Ave find on 
the bench as Chief Justice, in 1754, when our first 
printed Reports — those of Mr. Dallas — begin, was a 
merchant, in partnership with Mr. Turner ; and it may 
interest the curious to know, that his counting-house 
w^as in his dwelling, in Water street, below Market ; a 
fashionable quarter of the town in his day. He was 
a man distinguished for his social and fashionable emi- 
nence, as his family continued, I believe, to be, both 
in its men and women, before and after the Pte volution. 
The wife of Chief Justice Allen, was Margaret, a 
daughter of Andrew Hamilton. Mrs. Greenleaf, a 
woman of splendid beauty, during the time of Wash- 
ington, was his grand-daughter. Mrs. Tilghman, the 
wife of the Chief Justice of that name, was another. 
The late very accomplished Andrew Allen, for some 
time British consul at Boston, afterwards a resident of 
Burlington, N. J., and finally of Clifton, in England, 
where he died lately, was also his descendant. But 
there is no doubt that the Chief Justice practised com- 
merce, at least ex amateur, or as an inactive partner, 



248 THE FORUM. 

during his judicial career; and from it, mucli more 
likely than from the liberal professions, or from any 
emoluments of high judicial station, acquired the 
wealth which enabled him to maintain a liberal city 
house and style of life, and a summer home at Long 
Branch ; at which spot, known even prior to our Revo- 
lution as a watering-place, he had nearly a hundred 
years ago, a second residence for summer * 

We are not without a pretty good portrait of Chief 
Justice Allen, interesting in the history of. the law, as 
one of the few pictorial records of our early Chief Jus- 
tices, and interesting also in the history of American 
art, as one of the early productions of our countrjonan, 
Benjamin West ; a painter, whose genius has of late 
times been as much undervalued in England, as by 
a small party round the court of George III., it was 
overvalued about fifty years ago ; it is a three-quarters 

* Allen, as we state in the text, was a liberally disposed man, and 
distinguished mention is made in the papers of that day, of the great 
dinner which he gave in September, 1736, on his retirement from the 
mayoralty. " On Thursday last," says The Pennsylvania Gazette of the 
23rd of that month, " William Allen, Esquire, Mayor of this city, made 
a feast for his citizens at the State-house, to which all the strangers in 
town, of note, were also in%-ited. Those who are judges of such things 
say that, considering the delicacy of the viands, the variety and excel- 
lence of the wines, the great number of guests, and yet, the easiness and 
order xvith which the whole was conducted, it was the most grand and 
the most elegant entertainment that has been made in these parts of 
America." 



BEFORE THE REVOLUTION. 249 

length, and taken standing ; he has a curled wig and 
ruffled sleeves, but is otherwise dressed as plainly as 
possible. The costume for the whole dress, is appa- 
rently of one color — ^a not very good shade of brown; 
the colors may have faded. The face is round, with 
rather straight features, and is distinguished by hon 
hommie and good sense, rather than by intensity or 
acuteness of intellectual action, or by anything ascetic. 
He looks like a man who had the sense to use the good 
things of life without abusing them; and his whole 
appearance would render not improbable the story 
recorded of him, that when, on the estabhshment of 
the first theatre in Philadelphia, about a century ago, 
a deputation of gentlemen from "Meeting" waited on 
him, as Chief Justice of the province, to put the play- 
ers out of it, he told them that he must decline such 
action, as he had read as good moral instruction in 
plays, as he had ever heard from any of theu' ser- 
mons. This portrait is in the possession of a gen- 
tleman of Philadelphia, who is connected by marriage 
with the descendants of the Chief Justice. 

Of one of the puisne judges in 1754, under Allen's 
presidency, William Coleman, we have a terse, but 
beautiful characterization, by Dr. Franklin, who, with 
him, was a member of the well-known ''Junto," esta- 
blished at an early date in Philadelphia. " William 
Coleman," says Franklin, writing of the year 1728, 
" then a merchant's clerk, about my age, had the cool- 

VOL. I. — 17 



250 THE FORUM. 

est, clearest head, the best heart, and exactest morals, 
of almost any man I ever met with ; he afterwards 
became a merchant of great note, and one of our pro- 
Yincial judges. Our friendship continued without in- 
terruption to his death — upwards of forty years ; and 
the club continued almost as long, and was the best 
school of philosophy, morality, and politics, that then 
existed in the province;" Godfrey, the inventor of 
the quadrant, Joseph Brientnal, Scull, George Webb, 
and- others, were its members. 

It is interesting to note how often the names of our 
early provincial judges are connected with our city 
institutions of pubHc usefulness ; whether of charity, 
religion, or letters. Logan was the founder of one^ of 
our libraries — the Loganian ; Coleman was an active 
member and first treasurer of another — the FrankHn 
Library Company of Philadelphia. Allen, Coleman, 
Lawrence, Maddox, and Frankhn, were founders and 
original trustees of the University of Pennsylvania, 
and among the persons in 1749, who "subscribed 
among themselves a sum exceedmg £2000, to esta- 
blish it;" "humbly hopmg," says their declaration, 
" through the favor of Almighty God, and the bounty 
and patronage of well disposed persons, that it might 
be of great and lasting benefit to the present and 
future rising generations." Coleman was the first 
treasurer of the college, and Franklin and Maddox 
were both active persons, as well as contributors 



BEFORE THE REVOLUTION. ' 251 

to that now venerable institution of humanity — the 
Pennsylvania Hospital. 

Of Lawrence Growden, Caleb Cowpland, Alexander 
Stedman, and John Lawrence, who, with John Morton, 
were also judges of this court between 1754 and the 
Revolution, our knowledge does not enable us much 
to speak; the impression is, that both Growden and 
Lawrence were lawyers, but we think not Stedman or 
Cowpland. The Growdens came to the province at a 
very early date, and for nearly a century seem to have 
been comiected in different ways with its courts and 
bar; it is probable they were people of some conside- 
ration at home, for they gave to their place near Phila- 
delphia--in Bucks county, perhaps — the name of " Tre- 
vose," which was also the name of the seat or locality 
at which they had been long established in England, 
when they left it to come here. In their origm, as 
known in Pennsylvania, they were probably " Friends," 
though not all of them in harmony with the civd au- 
thority of that sect. As we shall see, further on, 
Joseph Growden, at a very early date of our history, 
was a man of some legal and literary distinction, and 
involved both himself and others in conflict with the 
provincial government — then very badly admuiistered 
by one of the governors — for presuming to publish 
comments, by way of interpretation, upon the char- 
acter of Mr. Penn. The name of Growden is not 
known at the bar in this day; but our impression 



252 THE FORUM. 

is, that to that family, in its female lines, the legal 
name of Rawle, long and still at our bar, belongs by 
descent. Of Caleb Cowpland, we cannot find a single 
trace, except his name. Alexander Stedman has left us 
a few vestiges, which, for want of better, we must re- 
trace. By comparing the signature on the sheet of 
autographs in this work, with the autographs of the 
subscribers for the " First City Dancing Assembly," 
recently fac-similed in this city, we find that in 1749, 
our venerable judge, then a youth, was a gentleman of 
taste and fashion ; he was a member of this " City 
Assembly;" "an Association," says the annalist, Mr. 
Watson, " which, like another Almack's, embodied the 
exclusives of the day, when the ehte were far more 
marked by metes and bounds of separation than now." 
" It professed," says this gentleman, " to enroll and 
retain in its union, only '■ those who had ancestral bear- 
ings and associations.' " Mr. Stedman, we are happy 
to add, does not appear to have allowed the dissipa- 
tions of the time to have carried him too far away ; and 
if we want assurance that by the time he had reached 
judicial honors, he had attained also to becoming gra- 
vity, we may find it abundantly in the fact told us in 
Dr. Dorr's History of Christ Church. He exercised 
for several years (from 1759 to 1764,) the office of 
fiscal warden of that corporation, an office of respon- 
sibility and of still more honor. 

It is said that John Morton — afterwards known as 



BEFORE THE REVOLUTION. 253 

a signer of the Declaration of Independence — sat, for 
a short time, under the province, as President of the 
Common Pleas, and an associate of the Supreme Court ; 
so little is known of his history, however, that it is 
difficult to fix the dates with exactness ; though, as he 
died in April, 1777, and was in Congress m July, 
1776, it is probable that his judicial tenures were as 
we have supposed. We know that his early education 
and associations, though plain, were entirely respect- 
able, and his moral character above all stain; and 
every act of his public life, of which we have any 
knowledge, shows that his intellectual parts were 
marked by that " finest, rarest, last betrayed," of men- 
tal faculties, good judgment. " To say of any man," 
we are told by an accomjolished writer, a member of 
our bar, " that he excels by that attribute, is to award, 
perhaps, the highest praise that could be bestowed. 
It is above invention ; it is beyond eloquence ; it is 
more than logic. In every employment and every 
condition of life, pubHc and private, dehberate and 
executive — and most of all, in the judicial — the ascen- 
dency of judgment over talent, wit, passion, imagma- 
tion, learning, is evinced at once by the rarity of the 
endowment, and by the superiority which it is certain 
to confer on its possessor." Such is the praise which 
belongs — in his judicial administration — to Morton. 
Of Chief Justice Chew — the last Chief Justice of the 
Crown — we need not speak here, as he belongs rather 



254 THE FOEUM. 

to the history of the Commonwealth, in which he held 
the distinguished post of President of the High Court 
of Errors and Appeals. Let us conclude, then, these 
notices, with the name of one, of whose integrity and 
virtues the memory is yet fresh, and who, we can well 
believe, must have done the Provincial Bench not less 
honor than those who did it most. Of Mr. Thomas 
Willing, an associate in 1767, the prolongation of whose 
life to a very advanced term, made his venerable per- 
son familiar to many of tliis generation, we need say 
but little ; he had been partially educated to the law 
in England, in the Temple, in which place, at No. 3, in 
the King's-walk, he is said to have had an uncle, named 
also, Thomas Willing, residing. But it is as a distin- 
guished citizen and merchant, that his memory comes 
chiefly commended to this generation; his character 
in both capacities has been sketched by a master-hand 
at the bar, in our own time. 

" This excellent man," says a lapidary inscription,* "in all the 
relations of private life, and in various stations of high public trust, 
deserved and acquired the devoted affection of his family and friends, 
and the universal respect of his feUow-citizens. From 1754 to 1807 
he successively held the offices of secretary to the Congress of Dele- 
gates at Albany, mayor of the city of Philadelphia, her represen- 
tative in the Gleneral Assembly, President of the Provincial Congress, 
delegate to the Congress of the Confederation, President of the first 

* On a monument in Christ Church burial s^rouud. 



BEFORE THE REVOLUTION. ' 255 

chartered bank in America, and President of the first bank of the 
United States. With these public duties he united the business of 
an active, enterprising, and successful merchant, in which pursuit, 
for sixty years, his life was rich in examples of the influence of pro- 
bity, fidelity, and perseverance upon the stability of commercial 
establishments, and upon that which was his distinguished reward 
upon earth, public consideration and esteem. His profound adora- 
tion of the Great Supreme, and his deep sense of dependence on his 
mercy, in life and in death, gave him, at the close of his protracted 
years, the humble hope of a superior one in Heaven." 

Such, in a general way, were the men, so far as 
casual reading recalls them, who made the judiciary 
of the old province ; a judiciary not likely to be 
surpassed in weight of private character or in degree of 
public estimation, by any which, in the times that we 
Kve in, we are probably again to see. Long may their 
virtues and character remain to receive our homage ! 

This sketch of our early judges will show, perhaps, 
in how much higher a degree, moral and prudential 
qualities enter into the true composition of a dignified 
bench than any others ; and that good principles, good 
habits, and good manners belong as much and as inse- 
parably to judicial greatness and judicial influence, as 
legal learning or legal practice. 

If the bench of the republic in our own day, possesses 
less weight than did the bench of the province ; if the 
title of a great magistrate is no longer a revered or 
respected one; and if the judge is not held by us as 
he was by our fathers — everywhere in honor — we 



255 THE FORUM. 

must search for the cause in the altered modes of ap- 
pointment, and the altered — ^the " available" — ^requisi- 
tions which the good people of our time have declared 
that they deem the best ones. 

In looking at the character of some of the persons 
who exercised the judicial office in the days of the 
province, one cannot help observing how much higher, 
too, in that day, than in this, must have been the 
character of " the merchant." Nearly all the justices, 
both of the Common Pleas and the Supreme Court — 
Franklin, excepted — were merchants ; yet they were 
men not only of much intelligence and education, but 
men also of a very high character as gentlemen; 
having all the atmosphere and reserve of gentlemen, 
and bearing those characteristics of independency and 
retkement, which Mr. Burke admired in the judicial 
character, and which, while fit to mark especially that 
character, belong to the best expressions of society 
everywhere; but belong not at all to the driving, 
eager, gamblmg class, which, too often in this day, 
assumes to represent "the merchant," whose honest 
and honourable commerce was the commerce of our 
fathers. 

We ought not to conclude, perhaps, without a word 
about the Admiralty Com-ts which, formerly of the 
province, have, since the adoption of the federal con- 
stitution, passed to the Union. 

The cornet of vice-admiralty, during the province, 



BEFORE THE REVOLUTION. ' 257 

was one whose jurisdiction has been a subject of con- 
test at the bar ever since our federal constitution was 
adopted; and, as it remains one of serious difference 
of opinion upon the bench of the highest tribunal of 
the country still, we shall not attempt to discuss it. 
Its ordinary business, we would think, could not have 
been great, but it had occasionally cases of large 
amount. Dr. Frankhn tells us that Andrew Hamil- 
ton, who had taken passage with him in 1724, on a 
vessel for England, had gone down the Delaware as 
far as Newcastle, but was "recalled by a great fee 
to plead for a seized ship." The case must have 
been one of magnitude, which could offer a fee suffi- 
ciently large to bring back Mr. Hamilton after he had 
set out on liis voyage. We have also a long and 
carefully written opinion by John Kinsey, in Septem- 
ber, 1745, on a question of salvage, wliich indicates so 
good a degree of familiarity with that class of ques- 
tions as to prove that they could not have been unfre- 
quent subjects of his examination. 

The judges, we suppose, were appointed immediately 
from the crown. We may infer this, both from the 
nature of the jurisdiction, and from the fact that even 
in early times they appear to have belonged to the 
church of England ; for the only two whom we hiotv to 
have been judges were wardens of Christ Church in 
this city. One of the earhest of these was William 
Assheton, who died in September, 1723, at the early 



258 THE FORUM. 

age of thirty-three, being at that time the rector's 
warden. Those persons who were formerly in. the 
habit of attending the venerable church of which we 
speak, and whose records, as given to us by Dr. Dorr, 
are among the most valuable contributions yet made to 
the history of our early city families, will perhaps 
recall a stone, (now covered by the floor put there in 
1836,) which was in the aisle in front of the chancel 
rails, not far from the north wall, the inscription 
partially obliterated : thus — - 

" M. S. Famse 
AssHETON * * * * iensis 
de Salford juxta Manchester 
# * * * Lancastriensis 
Stephanus Watts Francisca 
Rudolphi Susanna Assheton 
Anno Salutis 1768." 

To the older members of this family which came 
early to the province, and was one of the best educated 
in it, and in many of its members connected with our 
courts, where we always find their proceedings charac- 
terized by education, skill, and sense, we suppose Wil- 
liam Assheton, the judge, to have belonged. We find 
him, in 1722, in the absence of the rector from indis- 
position, invited by the vestrymen to " read prayers 
and sermons" to that respectable congregation. His 
sister was married, we think, to one of the early rectors 



BEFORE THE REVOLUTION. ' 259 

of the church, Mr. Archibald Cummings ; a name very 
familiar to persons who, like most lawyers in much 
practice of passing upon titles of real estate in Phila- 
delphia, have had constant occasion to trace and to 
note the histories of our earlier families ; for, in a 
space of about fifteen years, we have Mr. Cummings' 
registries of no less than " 851 marriages, 1728 bap- 
tisms, and 1601 burials." In an obituary notice which 
we have seen of Judge Assheton, he is styled " William 
Assheton, Esquire, Counsellor-at-law and Judge of His 
Majesty's Court of Vice-Admiralty for this Province, 
and one of the Governor's Council." He is stated to 
have been " a man of ability and probity in his pro- 
fession;" and it is added, that "his death is much 
lamented as weU by the public as by his private friends 
and acquaintance (they being very sensible of their 
loss.)" The name — once so much in place and honour 
— has become, we believe, entirely extinct in any kind 
of professional life in this city; nor do we know at all 
by whom it is represented. We take it to be probable, 
that Charles Read succeeded Judge Assheton in the 
vice-admiralty. He may have been in some way 
related to him, for he was the guardian of Assheton's 
children. Prior to his appointment to the bench he 
had been several times elected mayor and sherifif of the 
city, and one of the legislative representatives for the 
county. It gives us an idea of the judicial character 
of that day, which we hardly entertain even in this. 



260 THE FORUM. 

to find that Mr. Read, at the time of his death, held 
not only the office of judge of the vice-admiralty, but 
was also one of the provincial council, one of the com- 
missioners of the law office; and held also several 
other posts of honor and profit in the province, be- 
sides being collector of the port of Burlington, in New 
Jersey. A tribute to his character, of which we have a 
copy, declares of him that he " always discharged his 
respective trusts to the general applause;" and that 
he "left behind him the character of a sincere Chris- 
tian, tender husband, indulgent father, kind master, 
faithful friend, good neighbour, and agreeable com- 
panion." He died in 1736, we think, in the 51st year 
of his age. He, too, like Judge Assheton, was a 
warden of Christ Church, though we do not perceive 
that, like his predecessor, he was ever invited to even 
such discharge of the sacred functions as is allowed to 
lay readers. 

We believe that, at a later day, Thomas Hopkinson, 
father of Francis, the first district judge for this dis- 
trict under the constitution, was also a judge of the 
admiralty. We know that he was long the clerk or 
prothonotary of one of the provincial courts ; and if 
his judicial duties were performed as intelligently, and 
as regularly, and as beautifully as his clerical ones (of 
which many evidences may be seen,) undoubtedly were, 
he must have discharged them, if not like his prede- 
cessor, Mr. Read, is said to have done — to "general 



BEFORE THE REVOLUTION. 261 

applause' — at least to the satisfaction of all the counsel 
of his court. 

We have but few printed reports of the early admi- 
ralty. Mr. Penn, while in this country, considered 
himself a lord admiral, as his father, Sir WiUiam, had 
been before him. But we have only one of his cases 
and decisions. This is reported in the Provincial 
Minutes,* and as a specimen of that lucid style of re- 
porting, and especially of stating the case, which has 
since been very well known to the readers of our 
Supreme Court reports, both State and Federal, 
— as well as for Mr. Penn's excellent decision on the 
difficulty — deserves an extract here. We quote it lit- 
erally : — 

« At a Council! held at Philadelphia f 8* of y 7'^ Mo. 1683. 
Present : Wm, Penn, Prop'' and Grov, [and the Council.] 

" Phillip England made his Complaint against James Kilner, who 
denyeth all alledged against him, only y** Kicking of the maid, and 
that was for Spilling a Chamber Pott upon y^ Deck ; otherways he 
was Very Kind to them. George Green Saith that PhiUip England 
went to Said KHner to the overplus Water, also Beer, which was 
his own, and was denied it. Tho. Brinket Saith that James Kilner 
said he must take care of their Water, having but a Little Left, but 
never denyed them water at any Time. Also y® Ship rouled some- 
times when y" Caske was almost out, and soe made it Jjike pudle. 
He further saith y" Seamen drunk more of y^ Passingers beer than 
they themselves, and chainged 5 Barrells of y® Passingers beere and 
then the had not pformed halfe their Voige, and the Ship beer 
* Vol. L, p. 25. 



262 THEFORUM. 

being spent, drank wlioly of the Passing" ; he also saith ye Seamen 
drunk some times one Cann, some times two a day, more then y« 
Passingers that owed the drinke. The Master Saith the Passingers 
Left the Ordering of the Drink to him, but they deny it. 

The Gov'' gave the Master a Repremand and advised him to goe 
. w''' the Passingers and make up the Buisness, \f^ accordingly he 
did." 

We have next an opinion (not in these minutes) of 
Mr. Justice Assheton, given in the spring of 1723, 
^'when he gave judgment against two persons who 
were tried before him for contempts against the king." 
In that day of the province, therefore, the punish- 
ment of '■'• contem-pW seems to have been a special 
department of the admiralty jurisdiction. Two per- 
sons, brought before the judge, adherents of the cause 
of Charles Stuart, and Scotsmen, most probably, had 
ventured to call George Guelph " the Pretender ;" and 
one of them, it appeared, had not only spoken ill of 
the king, but had been guilty of that which might 
naturally impress the court as a still greater offence — 
disobeying and publicly affronting magistrates. He 
denied that he was bound to obey either the House of 
Hanover or the House of Hanover's judges. One of the 
men had confessed his guilt, and submitted ; but the 
other was contumacious, and it had to be proved upon 
him. Judge Assheton goes mto the whole general sub- 
ject of contempts, explauiing exactly what the}^ are : 
"in order that people may know when they incur guilt, 



BEFORE THE REVOLUTION. ' 263 

and though they are fully predetermined in their own 
opinions, against clear conviction, they may at least 
he so discreet as to reform theu" manners. He does 
not tell either the prisoners or us how, exactly, con- 
tempts against the king fell within the admu-alty juris- 
diction. He may perhaps have felt secure in the fact 
that the subject of contempts is not one for revision by 
any one except the courts which commit, and have 
usurped a power. If this was so, have we not cause to 
feel grateful for the advance of jurisprudence in tliis day ? 
After telling them what is contempt against the king, 
he informs them, " that it is greatly impudent and pre- 
sumptuous, for private persons to intermeddle with 
matters of so high a nature ; and it will be impossible 
to preserve the peace, unless subjects will quietly sub- 
mit themselves to those whom Providence has placed 
over them." He then examines the matter on " the 
Hebrew law," the law of " the New Testament," and 
asks, " if the maiming of a Ptoman Emperor, was pun- 
ished with death, what severity can be too harsh for 
those who -thus despise dominions, and speak evil of 
dignities ? who curse, asperse, and deny their supreme, 
true, and lawful, and undouUed sovereign." He gives 
some principles for the judicial action, not exceeded in 
strength of tone by any we have had since, and which 
we should almost think, had served as precedent pecu- 
liar to the admiralty. " Though it be," he says, " the 
duty of a magistrate, and an excellent qualification in 



264 THE FORUM. 

him, to temper justice with prudence, and severity 
with gentleness and forbearance, yet it must be con- 
fessed, much more for the common advantage, to have 
such magistrates as incline to the excess of sharpness 
and rigor, than those who are disposed to mildness, 
and easiness, and compassion. . . . The strict and 
harsh magistrate is the better restraint, the stronger 
curb ; the mild and merciful one exposes the laws to 
contempt, makes magistracy cheap, and lessens the 
prince, who makes both the law and the magistrate." 
After giving a somewhat milder sentence to the pri- 
soner, who had confessed his guilt and submitted to 
sentence, namely — that he "shall stand under this 
court-house* for the space of one hour, on two market- 
days, with one paper fixed on his breast, and another 
on his back, with these words writ upon them, in fair 
characters : ^ I stand here for speaJcing contemptuously 
against my sovereign Lord, King George ;' — ^pay 20 
marks, sterling, and the charges of prosecution," the 
judge goes to the other one, who had been contuma- 
cious, and " heartily wishing that the sentence might 
have a good effect upon him," pronounces his doom 
thus : " I do adjudicate and decree, that you shall 
stand in the pillory, in this market-place, for the space 
of two hours, on two market-days; that afterwards, 

* From this, it would appear that the old Admiralty Court must have 
been over the pillory, which was in the market-house at Third sti'eet, as 
the other courts were over the market-house, at Second street. 



BEFORE THE REVOLUTION. 265 

on the said days, you shall he tied to the tail of a cart, 
and he drawn round two of this city squares, and then 
you shall be whipped on your hare hack, tvith forty-one 
lashes, and be imprisoned till you have paid the charges 
of prosecution." 

It is only when vp^e read such judicial sentiments, 
and such judicial sentences — common sentences of the 
time — that we, in this day, can estimate the value of 
such efforts as those of WiUiam Bradford, Esquire, 
which, in 1794, led to the amelioration of our penal 
code. We read the small tract which bears his name, 
without being deeply impressed with the author's 
great superiority to other able men ; and without at 
first being perfectly able to understand, how it is that 
this essay has given to him a reputation over Europe. 
It was in the thought that his merit consisted, and 
that thought it was, which has since " conquered the 
world." 

It was our design in this chapter to give some spe- 
cial account of the Provincial Bar. The latest, and 
ablest, and best portion, however — the part which 
includes the names of McKean, Chew, Shippen, Reed, 
IngersoU, Lewis, Bawle, and Tilghman, belongs to the 
Commonwealth, and we shall speak of them under that 
title. Of the earlier ones, excepting Francis, Dickin- 
son, George Ross, and Andrew Allen, most of them 
fiU a larger space upon the Provincial Bench, of which, 
in a general way, we have given our impressions. Of 

VOL. I. — 18 



266 THE FORUM. 

some of these gentlemen just named, the elder Mr. 
Rawle, has given us such recollections as he had. Hjs 
beautiful sketch is in print, and we need not attempt 
its improvement. "We know that they were all well 
educated and accomplished lawyers and gentlemen, 
trained in the English school both of law and breed- 
ing ; and that Mr. Francis, who was attorney-general, 
appointed in 1741, and Mr. Galloway, were both in 
extensive practice. But unhappily GaUoway, unlike 
Francis, Hamilton, Dickmson, and other patriots of 
that period, deserted his country in her extremest need 
— in the darkest hour of the Revolutionary struggle, 
and therefore his name should be written only in the 
same volume that records the treason of Benedict Ar- 
nold, though not on the same blood-stained and guilty 
page. Men may escape merited punishment for a 
time, but the history and memory of their misdeeds, 
shall be their assured retribution. 

Mr. Allen also was the attorney-general, appointed 
November 4th, 1769 — the last attorney-general, we 
think, that the king of England appointed within this, 
our people's realm. He was faithful to his master, and 
his estates were confiscated by the people, to whose 
sovereignty he refused to submit. Of Andrew Ham- 
ilton, the greatest of the provincial lawyers, who was 
not raised to the bench, we give a special notice fur- 
ther on. But it would be of no great interest to the 
reader, nor, we presume, of any value to jurisprudence, 



BEFORE THE REVOLUTION. ' 267 

did we attempt to exhume the nearly forgotten history 
of John White, " attorney-general of Pennsylvania," of 
whom we know nothing but what we get from Proud, 
that, on the "25th October, 1683," he was appointed 
" to plead the cause between the Proprietary and 
Governor, and Charles Pickering and Samuel Buckley :" 
— of another king's attorney, of whom even the name is 
lost to us, but who was appointed 17th November, 168-5, 
"to prosecute John Curtis, accused of speaking treason- 
able words against the king ;" of Samuel Hensent, em- 
powered 16th January, 1685, "to prosecute all offend- 
ers against the penal laws, and to search for those who 
are on record convicted, and prosecute them if they 
have not satisfied the law ;" of David Loyed, his suc- 
cessor, appointed 24th April, 1686, and of whom we 
know only that he attempted unsuccessfully to control 
— against William Bradford, its first defender in Ame- 
rica — the freedom of the press, which Mr. Penn had 
invited here; a matter we tell of hereafter: of G. 
Lowther, whose annals are shorter still than Loyed's, 
since we know nothing of him but the date of his 
appointment, 23d September, 1706, or of Joseph 
Growden, Jun., who, succeeding Andrew Hamilton in 
his office, was commissioned 5th March, 1725. Our 
readers would soon be wearied with such annals. They 
are histories, however, which weU deserve attention as 
a special subject, and are worthy of regard from those 
whose tastes lead them to vindicate the fame of our 



2g8 THE FORUM. 

early colonists. But it is a task which, should be un- 
dertaken soon. Even while we write, the memo- 
rials which remain are passing rapidly to oblivion. A 
few gentlemen closely connected with the Historical 
Society have of late times done infinite service to the 
future history of our city and State, by the efforts 
they have made to bring together and to preserve, its 
scattered and soHtary fragments. The Society which 
they represent and take care of, deserves private and 
public encouragement; the collective encouragement 
of* the city, the collective encouragement of the State, 
and the individual encouragement of the people of 
both. To the labors of these gentlemen, much better 
able than we are to trace these matters fm^ther and in 
more detail, we may be permitted respectfully to com- 
mend them. 

In the foregoing hasty and imperfect survey of the 
earlier history of the province, we have designedly 
omitted to notice the early and continued struggle for 
the liberty of the press, and the celebrated trial of 
John Peter Zenger, for a libel, in 1735, in which 
Andrew Hamilton manifested so much firnmess and 
ability as to secure to himself the unquestioned title 
of the first advocate of his day. To this agreeable 
task we now address ourselves. At the moment of 
our writing, it is a remarkable and interesting fact, 
that the legislature of Pennsylvania, after a lapse of 
more than a century and a half, have enacted a law 



BEFORE THE REVOLUTION. 269 

providing for the admission of the truth in evidence, 
on the part of the defendant, in all criminal prosecu- 
tions for a libel ; and thus at least partially settled a 
question that has produced more controversy than 
almost any other connected with the law. We may 
also mention here what is not generally known — that 
John Peter Zenger arrived in the province of New 
York about the year 1710; and was apprenticed by 
Governor Hunter to William Bradford, who some time 
before this had established himself there as a prmter. 
Afterward, in 1733, he set up for himself in New York ; 
and in 1735 an information for a libel against the king 
and governor, was filed against him, and his paper was 
ordered to be burnt by the common hangman. His 
devotion to the freedom of the press seems to have 
been regularly derived from his master, as we shall 
see, if he did not even "better the instruction." 

The most extraordinary man, excepting Dr. Frank- 
lin and the great Founder, among all who lived during 
the early provincial history of Pennsylvania, was 
Andrew Hamilton, and almost the only man who de- 
served the name of an advocate. From the fact of one 
of the earlier Lieutenant-governors appointed by Wil- 
liam Penn, bearing the same name, they are often con- 
founded together, or supposed to bear the relation of 
father and son. Yet the Hamilton of whom we now 
speak, had no relationship or connexion with the other ; 
they flourished a quarter of a century apart : and in 



270 THE FORUM. 

truth, our subject originally bore the name of Trent — 
was a native of Ireland, emigrated to this country, 
and settled for a time on the Eastern shore of Mary- 
land, where he married, and afterwards removed to 
Philadelphia, in the early part of the last century. 

What were the inducements for his change of name, 
or of residence, nothing is known, nor is it a matter of 
any interest; our business with him is after he reached 
our soil, and not with his antecedents. He was the 
greatest lawyer of his time in this country, and a man 
of irrepressible energy of character; he became Pre- 
sident of the Executive Council — Speaker of the Sen- 
ate, and Attorney-general. He planned and founded 
the State-house, in which independence was afterwards 
proclaimed. He was a friend of Franklin, and a de- 
voted and unquestionable patriot ; he received a vast 
grant of lands for his services, embracing Bush-hill, and 
a large part of Lancaster county. His scientific skill 
was in requisition in almost all the other colonies, but 
his most remarkable professional effort was made in 
behalf of John Peter Zenger, to whom we have referred, 
as a printer in the city of New York, who was indicted 
for a libel, pubhshed against the government. 

Before proceeding to a brief notice of this celebrated 
trial, we may be permitted to give some account of a 
matter which must ever be interesting in America : 
the struggle between the Press and the Crown, in the 
infancy of this colony; which, while it forms a proper 



BEFORE THE REVOLUTION. 271 

prelude to the trial in which Hamilton was afterwards 
engaged, exhibits the early history of the law of libel 
and the freedom of the press, down to the year 1735, 
when the case referred to was determined. 

The " Liberty of the Press" in America, is a matter 
whose earlier history, we think, has not been well ap- 
prehended, even among ourselves, in modern times. 
Knowing, as we do, that our country was, as a general 
thing, colonized by those who left England in discon- 
tent with its laws against a general liberty on the sub- 
jects of religion and politics, , we have been led to 
suppose that The Press was as free in the early state 
of the colonies, as it has been in our own days. This, 
we take it, is a great mistake ; it is, certainlf/, so far 
as concerns Pennsylvania. There was, in truth, no 
liberty of the press at all, worth speaking of, in this 
State, prior to the year 1731 ; and it seems to have 
been asserted, maintained, and finally established by 
the printers themselves, against the sharp and unscru- 
pulous action of the crown-officers, who exercised in 
this colony, at least, a power far beyond any ever exer- 
cised contemporaneously in England ; a power, indeed, 
such as we find existing only in tyrannies as absolute 
and irresponsible as those of Naples, St. Petersburgh, 
or Vienna. The history of this subject is one of grow- 
ing interest; it deserves a special study and illus- 
tration from some literary man of the country; and 
such, sooner or later, it will no doubt receive. In 



272 THE FORUM. 

the mean time, we give to it a page or two of these 
remarks. 

When Mr. Penn had become the Proprietary of Penn- 
sylvania, there is no douht but that he meant to give 
the colonists the benefits of the press, and to allow to 
it all the hberty which it enjoyed at that time in Eng- 
land. In the very incipiency of things, he addressed 
himself to William Bradford, a youth, originally of 
Leicester, where his family belonged, but afterwards 
of London, to make a venture of his fortunes with the 
printing-press, in Pennsylvania. Bradford was the 
son-in-law of Andrew Sowles, a wealthy printer and 
publisher in London ; a man of very good character, 
and a particular friend of Mr. Penn,* whose regard for 
him is shown by his inviting him to be one of the wit- 
nesses to the charter of Pennsylvania.f It was in 
this way, we suppose, that Bradford and Mr. Penn 
became acquainted ; they came to Pennsylvania toge- 
ther, as we learn from Dixon's Life of Penn,J on " The 
Welcome," in 1682 ; and Bradford soon established his 
press "near Philadelphia," as imprints of 1687 inform 
us.§ He seems, at first, to have confined himself to 

* For an acconnt of Sowles, see a volume, entitled " Piety Promoted, 
in brief Memorials of the virtuous Lives, Services, and Dying Sayings of 
some of the people called Quakers." Vol. II., London, 1789. 

t See fac-simile in John Jay Smith's Autograph Curiosities, part 2. 

X Page 263, London, 185L 

2 This person, the first printer in America, south of Boston, it may be 



BEFORE THE REVOLUTION. ' 273 

printing almanacs, and sucli tracts of moral and agri- 
cultural instruction as all parties found to be accept- 
able, and all admitted to be not only harmless, but 
eminently useful. But on political subjects, or such 
religious controversies as the " Friends," who then en- 
grossed the whole government, were continually engaged 
in, he seems very carefully not to have printed any 
thing for some years after coming to the colony. In- 
deed, although one of Mr. Penn's principal objects in 
inviting him to go with him appears to have been to 
print the laws, such seems to have been the disputa- 
tious character of the colonists, and such their inclina- 
tion to interfere with the restraints which he had placed 
on his government, that Mr. Penn had hardly been in 
the province six months, when, at a council at which 

interesting here to state, established, with Claus and William Ritten- 
house, the first paper-mill in America, on the Wissahicon creek, as early 
probably as 1685 or 1687. He went, in 1692, on the invitation of Colonel 
Fletcher, to New York, where he was appointed printer to the Crown, an 
office which, with his son and grandson, he enjoyed for fifty years, for 
the three provinces of New York, New Jersey and Pennsylvania. He 
became rich, and died in New York in 1752, at the advanced age of 
ninety-two years. There is a monument to him on the north side of 
Trinity Church, New York, of which venerable corporation, as we learn 
from Dr. Berrian's sketch, he was for several years, (1703 to 1710,) a ves- 
tryman ; as he also was a contributor in 1711, to the embellishment of 
the original edifice which occupied the site of the present structure. It 
was in New York that Zenger, as we have said, was apprenticed to him 
by Governor Hunter. William Bradford, the second Attorney-general of 
the United States, was the great-grandson of the first printer. 



274 THE FORUM. 

he presided, it was enacted, that the lcm8 should ^^not 
he pinted."'^ He discovered that a colony, where the 
PRESS was FREE, would start into new being, and escape 
entirely from his power. It was a proof, not so much 
of Mr. Penn's arbitrary temper, as of his forecasting 
sagacity. Things, however, went along pretty well, 
till 1689. In that year some dissension having arisen 
in the colony as to the rights of the settlers, Joseph 
Growden, one of the most intelligent and educated 
men of the province, caused Bradford to print " The 
Charter, or Frame of Government of the Province," 
with some remarks by Growden. Bradford appears 
to have anticipated trouble, and therefore put no im- 
print to the tract ; though, as he was the only printer 
south of Boston, in the country, there was no real 
question by whom the pamphlet was printed. As 
soon as it appeared, he was summoned before the Go- 
vernor and Council, and examined in a way which 
we find very often in the old State trials of England, 
but absolutely inconsistent with any system of legal 
evidence or constitutional government. A written ac- 
count of this examination, in his own hand, was found 
within a year past, among some papers at Chester, in 
this State. It has never been printed before, and as 
it presents both a curious account of the proceeding 
itself, and a striking view of the entire absence of the 

* Provincial Minutes, Vol. I., p. 18. 



BEFORE THE REVOLUTIOX. ' 275 

liberty of the press in Pennsylvania in tliat clay, and 
of the earliest attempts to vindicate it, we give it here 
entire. It will be seen, according to this report of the 
proceeding, that Mr. Penn had given "particular 

ORDER FOR THE SUPPRESSING OF PRINTING" in his provinco ; 

a report which we might almost believe to be inaccu- 
rate, did we not find exactly the same thing asserted 
in the printed Minutes of the Provincial Council,"'^ by 
which we learn that Growden was arrested, as having 
directed the printing of the paper ; and that Governor 
Blackwell censures him, "not only for that it was 
false, hut for that the Proprietor had declared himself 
against the use of the printing iyressr-\ The paper 
drawn up by Bradford, and giving an account of the 
trial, is as follows : — 

* Provincial Minutes,,Vol. I., p. 236. 

t This startling statement of Penn's desire to suppress the printing 
press in his colony, rests upon Governor Blackwell's authority; hut there 
would seem no reason to doubt its accuracy, as the statement is made in 
two places, and in both instances in the presence of the Council, who 
must have had a knowledge of whatAvas contained in Mr. Penn's instruc- 
tions. Of Governor Blackwell, we have not personally much knowledge; 
the name of Blackwell was well knoAvn in this city until of late yeare, 
when it ceased, we believe, with the Reverend Robert Blackwell, D. D., 
for many years a minister of Christ Chuixih and St. Peters : but this gen- 
tleman was not a descendant of the Governor 5 his ancestors, of an Eno-- 
lish family, having, from a very early date, been settled on Long Island 
and on Blackwell's Island, of which last they were proprietors 5 and from 
which he came with the American army,, after it left Long Island,, as 
Chaplain. The Governor probably returned to England. 



276 



THE FORUM. 



" The examination of William Bradford lefore Governour Blackwell, att 
Philadelphia, the 9th of the Second month, 1689, concerning printing 
the Charter. 

Gffvernour. — ' Why, Sir, I would know by wliat power or autho- 
rity you thus print ? Here is the Charter printed !' 

Bradford. — ' It was by Grovernour Penn's encouragement I came 
to this province, and by his license I print.' 

Governour. — ' What, Sir, had you license to print the Charter ? 
I desire to know from you, whether you did print the Charter or 
not, and who set you to work V 

Bradford. — ' Grovernour, it is an impracticable thing for any man 
to accuse himself; thou knows it very weU.' 

Governour. — ' Well, I shall not much press you to it, but if you 
were so ingenuous as to confess, it should go the better with you.' 

Bradford. — ' Governour, I desire to know my accusers ; I think 
it very hard to be put upon accusing myself.' 

Governour. — ' Can you deny that you printed it ? I do know you 
did print it, and by whose directions, and wiU prove it, and make 
you smart for it, too, since you are so stubborn.' 

[J710. Hill, standing by, said, * Sir, I am informed that one hun- 
dred and sixty were printed yesterday, and that Jos. Growden saith 
he gave 208 for his part towards the printing it.'] 

Bradford. — ' It's nothing to me, what Joseph Growden saith, let 
me know my accusers, and I shall know the better how to make my 
defence ; I do not desire to do anything that might give offence to 
any ; I havQ been here near four years, and never had so much s* to 
me before by Governour, or any else. Printing the laws, was one of 
the chief things Governour Penn proposed to me before I came here, 
yet I have forborne the same, because I have not had particular 
order ; but if I had printed them, I do not know that I had done 



BEFORE THE REVOLUTION. ' 277 

Gcmernour. — ' Truly, I question whether there hath been a Go- 
vernour here before, or not, or them that understood what government 
was — which makes things as they now are.' 

Bradford. — * That's strange j I do think and believe that there 
hath been a Governour here. However, since thee came here, (Go- 
vernour,) I never heard of any thing to the contrary, but that I might 
print such things as came to my hand, whereby to get my living ; it 
is that by which I subsist ; nor do I know of any " Imprimatur" 
appointed. When things are settled and ordered, I hope I shall 
comply, so far as to endeavour to avoid giving offence to any.' 

Governour. — ' Sir, I am " Imprimatur j" and that you shall know. 
I will bind you in a bond of five hundred pounds, that you shall 
print nothing but what I do allow of, or I wiU lay you fast.' 

Bradford. — * Governour, I have not hitherto known thy pleasure 
herein, and therefore hope thou wilt judge the more favorably, if I 
have done any thing that does not look well to some.' 

Gofvernaiir. — ' If you would confess you might expect favour, but 
I see you are willfull ; you should have come and askt my advice, 
and not have done any tiling that particular parties bring to you. 
Sir, I have particular order from Governour Penn for the suppressing 
of printing here, and narrowly to look after your press, and I will 
search your house, look after your press, and make you give in five 
hundred pound security to print nothing but what I allow, or I'll 
lay you fast.' 

\ffno. Hill said, * The Charter is the groundwork of all laws, and 
for you to print it att this time without order from Governour, is a 
great misdemeanor.'] 

[Griffith Jones said : 'William, I doubt thou hearest and takes 
advice of those who advise thee to that which will not be for thy 
good at last.'] 

Bradford. — ' Governour, it is my imploy, my trade and calling, 
and that by w""" I get my living, to print ; and if I may not print 



278 THE FORUM. 

such tilings as come to my hand, which are innocent, I cannot live : 
I am not a person that takes such advice of one party or other, as 
Griffith Jones seems to suggest. If I print one thing to-day, and 
the contrary party bring me another to-morrow, to contradict it, I 
cannot say that I shall not print it. Printing is a manufacture of the 
nation, and therefore ought rather to be encouraged than suppressed.' 
Governour. — ' I know printing is a great benefit to a country, if 
it be rightly managed ; but if otherwise, as great a mischief. Sir, 
we are within the king's dominions, and the laws of England are in 
force here, and you know the laws, and they are against printing, 
and you shall print nothing without allowance j I'll make Mr. Grow- 
den bring forth the printer of this Charter.' 

Bradford. — ' Since it hath been here said that the Charter is the 
ground or foundation of aU our laws and priviledges, both of Go- 
vernour and people, I would willingly ask one question, if I may, 
without offence, and that is, whether the people ought not to know 
their priviledges and the laws they are under V 

[^Griffith Jones. — ' There is a p'ticular office, (MS. worn out,) thou 
knows where y® Charter is kept, and those that want to know any 
thing, may have recourse thither ; it was a very ill thing for thee, at 
this juncture, to offer to print the Charter.'] 

Governour. — ' It is a thing that ought not to be made public to 
all the world, and therefore is entrusted in a particular person's 
hand, whom the people confide in.' 

[ Griffith Jones. — ' William, thou knows thy father hath suffered 
much in England, for printing, (though I do not say for doing any 
thing against the law, or meddling with government,) and I would 
not have thee bring trouble upon thyself.'] 

Bradford. — ^ If it were not for the people to see and know their 
privileges, why was the Charter printed in England V 

Governour. — 'It was not printed in England.' 

Bradford. — ' Governour, under favour, it was printed in England.' 



BEFORE THE REVOLUTION. 279 

Governour. — ' It was not — What, this Charter ?' 

Bradford. — 'Yes, this Charter, but that some alterations have 
been made since.' 

\_Griffdh Jones. — 'By what order did you print it in England ?'] 

Bradford. — ' By Governour Penn's.' 

Governour. — 'That was something; but you was not to print it 
of your own accord.' 

Bradford.—' Have I ?' 

Governour. — ' That I shall prove and make you know, Sir.' 

\_Griffith Jones. — ' There is as much need of the alteration of the 
Charter now as ever, and may be, if six parts of seven of the peo- 
ple be obtained, which is not unpossible.'] 

Governour. — ' There is that in this Charter, that which overthrows 
all your laws and priviledges : Governor Penn has granted more 
priviledge or power than he hath himself.' 

Bradford. — ' That is not my business to judge of or determine ; 
but if anything be laid to my charge, let me know my accusers ; I 
am not bound to accuse myself.' 

Governour. — ' I do not bid you accuse yourself; if you are so 
stubborn and will not submit, I will take another course.' " 

With more to the same purpose. 

We have no report of the waym which the case 
ended. Indeed, Bradford appears to have been so 
much more than a match for both Governor and Coun- 
cil, that it is probable they were glad to part with him 
peaceably. It is certain his press was not stopped, 
nor much controlled, notwithstanding the assaults 
upon its liberty, by Penn, his deputies and council. 
But further attacks of the same kind were at hand. 
In 1692, a quarrel took place between the Quaker 



280 THE FORUM. 

magistracy and a part of the Quaker colonists, on a 
question partly civil and partly religious ; and Brad- 
ford, though taking no part, apparently, in the quarrel 
itself, printed a pamphlet of one of the disputants, 
George Keith, who had taken part against the dogmas 
which the Quaker Rabbis, who then thundered from 
the seats of authority, now asserted, Bradford was 
arrested, and the sheriiF being sent to search his office, 
took possession of his press, tools, type, and also of the 
"form," as printers call it, (which he found still stand- 
ing,) from which the obnoxious pamphlet had been 
printed. The trial was had in form before two Quaker 
judges, Jennings and Cook, assisted by others. A 
curious contemporary account of it still remains to us. 
The prisoner conducted Ms case in person, and man- 
aged it with a fearlessness, force, acuteness and skill 
which speak very highly for his intelligence and accu- 
rate conception of legal principles. When the jury 
were called, he challenges two of them because they 
had formed and expressed opinions, not as to the fact 
of his having published the paper, but as to its being 
of a seditions character ; opinions which he himself had 
heard them express. The Prosecuting Attorney says 
to Bradford, after he had made his exception : 

" '■ Hast thou at any time heard them say that thou printed the 
paper ? for that is only what they are to find.' 

Bradford. — ' That is not only what they are to find. They are 



BEFORE THE REVOLUTION. 281 

to find also whetlier this he a seditious paper or not^ and ivJtetlier 
it does tend to the iceakening of tJie hands of tlte magistrates^ 

Attorney. — 'No, tliat is matter of law^ which the jury is not to 
meddle with, but find whether William Bradford hath printed it or 
not.' 

Justice Jennings. — '■ You are only to try whether William Brad- 
ford printed it or not^ 

Bradford. — ' This is wrong ; for the jury are judges in the law 
as weU as in the matter of fact.' 

Justice Cook. — ' I will not allow these exceptions to the jurors.' " 

We have, therefore, in tliis trial, evidence of the 
fact, interesting to the whole press of America, and 
especially interesting to the Bar and the Press of Penn- 
sylvania, that, on the soil of Pennsylvania, the father 
of her press asserted, in 1692, with a precision not 
since surpassed, a principle in the law of libel hardly 
then conceived any where, but which now protects 
every publication in this State* and in much of our 
Union ; a principle which English judges, after the 
struggles of the great whig Chief Justice and Chancel- 
lor, Lord Camden, through his whole career, and of the 
brilliant declaimer, Mr. Erskine, were unable to reach ; 
and which, at a later day, became finally established 

* From and after the passage of this Act, on the trial of indictments 
for writing or publishing a libel, the truth of the matter charged as libel- 
lous may be given in evidence, and if the jury in any case shall find the 
same was written or published from good motives or for justifiable ends, 
and that the matter so charged was true, it shall operate to the acquittal 
of defendant or defendants. — Acts of Assembly of Pennsylvania, 1855-56. 

VOL. I. — 19 



282 THE FORUM. 

in England only by the enactment of Mr. Fox's libel 
bill in parliament itself. 

Well authenticated tradition has reported an amusing 
anecdote connected with this trial.* The oral testimony 
upon the question, whether Bradford printed the " sedi- 
tious libel ?" being insufficient to satisfy the jury, the 
form itself was carried to their room. Attempting to 
wheel it round into a just position, one of the jury, as 
he assisted in the effort, pushed against the bottom 
with his cane — he pushed a little too hard ; the shrunken 
quoins gave way. Like magic, the form fell into a 
confused heap of letters ; and a mass of pi, was the 
only evidence which the prosecution relied upon as its 
convincing proof! Bradford soon after published an 
account of his trial, which he circulated extensively. 
He already had the jest on his side, which, in common 
apprehension, was a victory; and it was not long be- 
fore he got the judgment with him also. He appealed, 
at once, from the Justices — the inferior County Court 
which tried hun — to the Governor in Council. Colonel 
Fletcher was now in power. The case came on to be 
heard April 27th, 1693, before the Governor, Lieu- 
tenant-governor, (Markham,) and the Board of Council. 
The minutes record his triumph.*|" " Upon reading the 
petition of William Bradford, printer, directed to his 

* New York Tribune, of February 7tli, 1849. 

t Minutes of the Provincial Council, Vol. I., p. 326. 



BEFORE THE REVOLUTION. 283 

Excellency, wherein he set forth that, in September 
last, his tools and letters were seized by order of the 
late rulers, for printing some books of controversy, 
and are still kept from him, to the great hurt of his 
family, and prays relief — his Excellency did ask the 
advice of this Board ■" and " the several members of 
Council being well acquainted with the truth of the 
petitioner's allegations, are of opinion and do advise 
his Excellency to cause the petitioner's tools and let- 
ters to be restored to him;" whereupon it was "ordered 
that John White, sheriff of Philadelphia, do restore to 
Wilham Bradford, printer, his tools and letters, taken 
from him in September last." Bradford's old foes 
upon the bench, "Sam. Jennings" and "Arthur Cook," 
not long after this resigned their places.* Like Robin 
hostler, after " the rise of oats," it seemed as if they 
"never joyed since;" "it was the death of them." 

This severe censorship of the press by the govern- 
ment, by no means ended with the earliest times of 
our colony. We find, that in 1721, the finances of 
Pennsylvania having fallen into great disorder, some 
one had published a pamphlet, entitled " Some Reme- 
dies Proposed for Restoring the Sunk Credit of the 
Province," and Andrew Bradford, a son of the William 
already named, and whom we have spoken of above, 
having recently published his "American Weekly Mer- 

* Minutes of the Provincial Council,. Vol. III., p. 141, 142. 



284 THE FORUM. 

cury," the first newspaper printed in Pennsylvania, one 
of the persons in his office inserted in the number of 
January 2nd, 1721, the following paragraph on the 
same subject : "Our General Assembly," it runs, "are 
now sitting, and we have great expectations from them 
at this juncture, that they will find some effectual 
remedy to revive the dying credit of this Province, and 
restore us to our former happy circumstances." On 
the 21st of February, 1721, Bradford was summoned, 
for this short paragraph, before the Provincial Council. 
Declaring that he knew nothing of the printing or pub- 
lishing of the pamphlet, and that the paragraph in the 
Mercury "was inserted by his journeyman, who com- 
posed the said paper without his knowledge, and that 
he was very sorry for it," &c., he escaped having his 
press stopped, or being himself prosecuted ; but he did 
not escape without a charge from the Governor, for the 
future "not to publish any thing relating to or concern- 
ing the affau's of this government, or any other of his 
Majesty's colonies, without the permission of the Go- 
vernor or Secretary for the time being." He was 
dealt with more severely and made a much more vigor- 
ous stand a few years afterwards. It being near the 
time of the annual elections, a communication was in- 
serted on the tendency of power to perpetuate itself, 
and on the necessity of what has since come to be a 
favorite and familiar doctrine : — Occasional Rotation in 
Office. It forms No. 31, of " The Busy Body," a series 



BEFORE THE REVOLUTION. 285 

of essays begun by Franklin in Bradford's " Mercury," 
and afterwards continued by different hands. It was 
well written, and though bold in parts, an air of plea- 
santry took from them much aspect of malignity. In- 
deed the whole piece is subdued below the standard 
even of orthodoxy in modern Democratic pohtics, and 
it contains much which deserves, and would receive, at 
all times the admiration of every party.* The editor 
had observed its language, and in presenting it, says 
that it was too good to be concealed; that he had 
" repeatedly invited the learned and ingenious to his 
assistance, and given proper caution to his correspondents^ 
but that, not wishing to take credit for any others' 
labours, he published this piece unaltered. When it 
appeared, the Governor made a special summons of the 
Council, to lay the matter before them. Bradford was 

* " To be friends of liberty," it says, " firmness of mind and public 
spirit is absolutely requisite ; and this quality, so essential and necessary 
to a noble mind, proceeds from a just way of thinking that we are not 
born for ourselves alone, nor our own private advantage alone, but like- 
wise and principally for the good of others, and service of civil society. 
This raised the genius of the Romans, improved their virtue, and made 
them protectors of mankind. This principle, according to the motto of 
these papers,'* animated the Romans — Cato and his followers — and it was 
impossible to be thought great or good, without being a patriot : and 
none could pretend to courage, gallantry and greatness of mind, without 
being first of all possessed with a public spirit and love of their country." 

a The motto was from Lucan : 

"Haec duri immota Catonis secta fuit 
Servari modum, finemque tueri ; 
Nee sibi sed toti genitum se credere mundo." 



2gQ THE FORUM. 

ordered to be "immediately taken into custody and 
examined by the Mayor and Recorder of the City, . . 
. . . and that his diveUing-house and printing-office he 
searched for the tvritte7i coiiy of said libel that the au- 
thor may be discovered, and that the attorney-gene- 
ral commence a prosecution against the said Bradford, 
for printing and publishmg the same."* He was ac- 
cordingly committed to prison and bound over to the 
court. His paper of the following week referring to the 
article ; says, that it was supposed that " enough had 
been said to introduce it, without blame ;" that not- 
withstanding this, it had " given offence undesigned." 
It thinks that the matter had been misrepresented to 
the persons who conceived the rigorous usage neces- 
sary, and aggravated. However, it gives a second 
article on the same subject; and with some independ- 
ence, declares that it had been written and was ready 
for press before the other was printed, and that "it 
had not been enlarged, lessened, or altered," "for what 
has happened upon publishing the other."f What be- 
came of the case finally, does not appear. Bradford 
made no further apology nor submission. No inter- 
ruption of his press or paper took place ; and the pro- 
secution had so good an effect on his reputation, that 
he was soon afterwards elected a council-man of the 

* Minutes of the Provincial Assembly, Vol. III., p. 392. See Weekly 
Mercury, No. 506. 

t See Weekly Mercury, No. 50T. 



BEFORE THE REVOLUTION. 287 

city; which he continued to be for the residue of his life. 
From this date, some fixed ideas, originating from the 
press itself, began to be had about its liberty in Penn- 
sylvania ; and we find both newspapers and pamphlets 
commenting on the concerns of government, with far 
greater freedom than they had done. In 1735, An- 
drew Hamilton made his great defence of Zenger.*'' 

The history of the trial, so far as it is necessary to 
be known, was this : — John Peter Zenger was indicted 
in New York, for a libel against the British Govern- 
ment and the Governor of New York, before the Hon. 
James De Lancy, Chief Justice of the Province of New 
York, and the Hon. Frederick Phillipse, second Judge, 
on the 4th of August, 1735. The defendant was de- 
fended by counsel, James Alexander and William 
Smith ; the first step taken by whom, was in the 
shape of Exceptions to the competency of the court : 

"1. Because the commission was granted during pleasure; whereas, 
it ought to be granted during good behaviour. 

" 2. That the commission was granted by a Justice of the Com- 
mon Pleas, whereas, it could only be granted by a Judge of the 
King's Bench. 

" 3. That the form of the commission was not warranted by law, 

" 4. It appears that the commission was allowed by William 
Cosby, Esq., Governor of the Colony, and without the advice or con- 
sent of liis Majesty's Counsel of this Colony, without which the Gro- 
vernor could not grant the same. 

* Howell's State trials, Vol. XVIL, p. 675, 



2gg THE FORUM. 

" Wherefore the defendant humbly hopes, that the Hon. James 
De Lancy will not take cognizance of the same. 

" Signed, 

" James Alexaner, 

"William Smith." 

The exceptions to the Hon. Frederick PhiUips, were the same. 

These exceptions on the 15th of April, 1735, were 
offered to the court, upon which the Chief Justice said 
to Mr. Alexander and Mr. Smith, that they ought weU 
to consider the consequences of what they offered ; to 
which they answered, they had well considered the con- 
sequences ; and Mr. Smith further said, " that he was 
so well satisfied of the right of the subject to take an 
exception to the commission of a judge, if he thought 
such commission illegal, that he durst venture his life 
upon that point." 



" On the 16th (the first-day,) Mr. Smith asked the judges, 
whether their honors would hear him upon these two points : 

"1. Whether the subject has the right to take such exceptions? 
" 2. That the exceptions taken were legal and valid. 

" To which the Chief Justice said, 'that they would neither hear 
nor allow the exceptions, for (said he,) you thought to have gained 
a great deal of applause and popularity by opposing this court, as 
you did the Court of Exchequer ; but you have brought it to that 
point, that either we must go from the bench, or you from the bar.' 
He then handed the clerk the following paper : — 



BEFORE THE REVOLUTION. 289 

" At a Supi'eme Court of Judicature, held for the Province of New York, 
at the City Hall of the City of Neio York, on Wednesday, the lijth 
day of April, 1Y35 ; jjresent, the lion. James Be Lancy, Esq., Chief 
Justice ; the Hon. Frederic Phillips, Esq., second Justice. 

" James Alexander, Esq., and William Smith, attorneys of this 
Court, having presumed (notwithstanding they were forewarned by 
the court of their displeasure, if they should do it,) to sign, and 
having actually signed and put into Court, exceptions in the name of 
John Peter Zenger ; thereby denying the legality of the judges 
their commissions, tho' in the usual form, and the being of this 
Supreme Court. It is therefore ordered, that for the said contempt, 
the said James Alexander and William Smith be excluded from any 
further practice in this Court j and that their names be struck out of 
the roll of attorneys of this Court. Per cur. 

James Lyne, CL 

" After the order of the court was read, Mr. Alexander asked, 
whether it was the order of Mr. Justice Phillipse, as well as of the 
Chief Justice ? To which both answered, that it was their order ; 
upon which, Mr. Alexander added, that it was proper to ask that 
question, that they might know how to have their relief. He farther 
observed to the court, upon reading the order, that they were mis- 
taken in their wording of it, because the exceptions were only to 
their commissions, and not to the being of the court, as is therein 
alleged ; and prayed that the order might be altered accordingly. 
The Chief Justice said, they conceived the exceptions were against 
the being of the court. Both Mr. Alexander and Mr. Smith denied 
that they were, and prayed the Chief Justice to point to the place 
that contained such exceptions; and further added, that the court 
might well exist, though the commissions of all the judges were 
void ; which the Chief Justice confessed to be true : and therefore, 



290 THE FORUM. 

they prayed again, that the order in that point might be altered ; 
but it was denied. 

" Then Mr. Alexander desired to know whether they wernded, or 
rejected the exceptions ? The Chief Justice said he did not under- 
stand the difference ; to which said Alexander replied, that if he 
rejected the exceptions, then they could not appear upon the pro- 
ceedings, and in that case the defendant was entitled to have them 
made part of the proceedings, by bills of exceptions ; but if they 
overruled them, then, by so doing, they only declared them not suf- 
ficient to hinder them from proceeding by virtue of those commis- 
sions ; and the exceptions would remain as records of the court, and 
ought to be entered on the record of the cause, as part of the pro- 
ceedings. The Chief Justice said they must remain upon the file, to 
warrant what we have done 5 as to being part of the record of the 
proceedings in that cause, he said, you may speak to that point to- 
morrow. 

"Friday, April 18th, 1735. 

" Mr. Alexander signified to the court that, on Wednesday last, 
their honors had said that the counsel for Mr. Zenger might speak 
to the point concerning the rejecting or overruling of Mr. Zenger's 
exceptions on the morrow; to which the chief justice answered, that 
he said you may get some person to speak to that point on the mor- 
row ; not meaning that the said Alexander should speak to it, that 
being contrary to the order. Both Mr. Alexander and Mr. Smith 
said they understood it otherwise. They both also mentioned, that 
it was a doubt whether, by the words of the order, they were de- 
barred of their practice as counsel, as well as attorneys, whereas 
they practised in both capacities. To which the chief justice 
answered, that the order was plain — " That James Alexander, Esq , 
and William Smith, were debarred and excluded from their whole 
practice at this bar ; and that the order was intended to bar their 



BEFORE THE REVOLUTION. 291 

acting both as counsel and as attorneys, and that it could not be 
construed otherwise." And it being asked Mr. Phillipse whether 
he understood the order so, he answered that he did." 



Zenger being thus left without counsel, the court ap- 
pointed a gentleman much more obsequious to power, to 
take charge of his defence, who, after a motion or two— 
a mere show — ^permitted the court to have its own way, 
and Zenger was in a fair way, between the despotism of 
the court and the subserviency of his lawyer, to have 
a speedy lodgment in the prison, when application was 
made by Zenger's friends to Andrew Hamilton, whose 
fame seems to have spread over the land, for his pro- 
fessional assistance. Mr. Hamilton promptly responded 
to the call, and although he did not renew the excep- 
tion which had disbarred Mr. Smith and Mr. Alexander, 
he took a bold stand ; adopting the doctrine of Brad- 
ford in its fullest scope ; and finally triumphed over 
both the attorney-general and the court, and obtained 
for his client a triumphant acquittal. His services 
appear to have been gratuitous and most chivahic. 
But Zenger, who was a printer, caused the trial to be 
accurately and fully reported and published, and the 
whole cause became one of such notoriety and glory, 
that Hamilton was applauded to the very echo. A 
gold box, with appropriate inscriptions, was presented 
to him, and the freedom of the city conferred upon 
hun. In short, he acquired unexampled reputation, 



292 THE FORUM. 

in obtaining from the jury a verdict in conformity with 
those principles which so long had been the subject of 
the most determined, but unavailing conflict between 
the friends, and enemies of the liberty of the press. 
It was a trinmph which even Erskine, many years 
after, in the case of the Dean of St. Asaph, and all 
others during the interval, failed to achieve. 

The law for which Mr. Hamilton contended was not 
sustained by any of the authorities of that day, but 
obviously well founded in reason and in principle. 
Yet still, to this day, in some of the States where 
there has been no counter legislation, the judges leave 
nothing to the jury but the publication and the innu- 
endoes, reserving it to themselves to determine upon 
the question of libel or no libel, even in a criminal case. 
The speech of Mr. Hamilton exhibited great power. 
But that which contributed more to his success than 
even his intellectual and legal ability, was his im- 
perturbable composure and firmness throughout the 
entire proceeding. He was a man of great acuteness, 
great readiness, and no inconsiderable wit. And it 
is perfectly apparent that, during the entire trial, he 
never shrunk for a moment from the brave and judi- 
cious performance of his duty. 

There are portions of his argument that manifest 
extensive legal study and a high order of eloquence ; 
all of which, however, with such a tribunal, would have 
resulted in no benefit to his client, but for what, in 



BEFORE THE REVOLUTION. 293 

homely phrase, may be called his dogged determination 
to resist everything like oppression. Few speeches, 
from that time down to the present, have been attended 
with more beneficial results, or have shed greater light 
upon the true principles of the law of libel, or greater 
glory upon the advocate. 

After a rich harvest of unfading honors, Mr. Hamil- 
ton returned to Philadelphia, where, on the 4 th of 
August, 1741, he died, and was the subject of the fol- 
lowing eulogy from the pen of Franklin, which, for 
simplicity, strength, and beauty, was at once worthy 
of the author and his subject.* 

" On the fourth instant, died Andrew Hamilton, Esq., and was 
the next day interred at Bush Hill, his country seat. His corpse 
was attended to the grave by a great number of his friends, deeply 
affected with their own but more with their country's loss. He lived 
without enemies ; for, as he was himself open and honest, he took 
pains to unmask the hypocrite, and boldly censured the knave, 
without regard to station or profession. Such, therefore, may exult 
at his death. He steadily maintained the cause of liberty; and the 
laws made during the time he was speaker of the assembly, which 
was many years, will be a lasting monument of his affection to the 
people, and of his concern for the welfare of this province. He was 
no friend to power, as he had observed an ill use had been frequently 
made of it in the colonies, and therefore was seldom upon good terms 

* "Pennsylvania Gazette," published on the 6th of August, 1741, in 
which will be found the following eulogy upon Mr. Hamilton, which no 
doubt was written by Benjamin Franklin, who was the editor of the 
Gazette. 



294 THE FORUM. 

with the governors. This prejudice, however, did not always deter- 
mine his conduct towards them, for when he saw they meant well, 
he was for supporting them honorably, and was indefatigable in 
endeavoring to remove the prejudices of others. He was long at 
the top of his profession here ; and had he been as griping as he 
was knowing, he might have left a much greater fortune to his family 
than he has done. But he spent much more time in hearing and 
reconciling diflFerenees in private, (to the loss of his fees,) than he 
did in pleading causes at the bar. He was just when he sat as 
judge, and though he was stern and severe in his manner, he was 
compassionate in his nature and very slow to punish. He was a 
tender husband and a fond parent. But these are virtues which 
fools and knaves have sometimes, in common with the wise and the 
honest. His free manner of treating religious subjects gave offence 
to many, who, if a man may judge from their actions, were not 
themselves much in earnest. He feared God, loved mercy, and did 
justice. If he could not subscribe to the creed of any particular 
church, it was not for want of considering them all, for he had read 
much on religious subjects. He went through a tedious sickness 
with uncommon cheerfulness, constancy, and courage. Nothing of 
affected bravery or ostentation appeared ; but such a composure and 
tranquillity of mind as results from the reflection of a life spent 
agreeable to the best of man's judgment. He preserved his under- 
standing and his regard for his friends to the last moment. What 
was given as a rule by a poet, upon another occasion, may be justly 
applied to him upon this, 

* * * ' Servetur ad imuni 
Qualis ab incepto processerit, et sibi constet' " 



The following Lists of Judges and Attorneys General of Penn- 
sylvania, prior to tJbe Kevolution, so far as they can be ascertained, 



BEFORE THE REVOLUTIO>f. 



295 



may contribute to aid, in some measure, the recollections of the past, 
and in that hope are submitted to our readers. The former is taken 
from the excellent Address of Mr. Peter M'Call, before the Law 
Academy of Philadelphia, in 1838, of which we regret not to have 
been able to procure a copy, till the proof sheet of this page was 
passing through our hands ; the other is a compilation by the late 
Mr. Joseph Keed, co-editor with Mr. Charles Smith, of an edition 
of the Laws of Pennsylvania : — 



JUDGES OF THE PROVINCIAL SUPREME COURT. 



1684. 

Nicholas Moore. 
William Wood. 
William Welch. 
John Turner. 
John Eckley. 

1685. 

James Harrison. 
James Claypoole. 
Arthur Cooke. 

1686. 

Arthur Cooke. 
John Symcocke. 
James Harrison. 

1690. 

Arthur Cooke. 
William Clark. 
Joseph Growdon. 
John Symcocke. 
William Clark. 
Arthur Cooke. 
Griffith Jones. 
Edward Black. 



1693. 

Andrew Robeson. 
William Salway. 
John Cann. 

1694. 

Andrew Robeson. 
Anthony Morris. 
Edward Black. 



1699. 

Edward Shippen. 
Cornelius Empson. 
William Biles. 



1702. 

William Clark. 
Edward Shippen. 
Thomas Masters. 

1705. 

John Guest. 
Joseph Growdon. 
Jasper Yeates. 
Samuel Finney. 
William Trent. 



296 



THE FORUM. 



1706. 

Roger Mompeson. 
Joseph GroAvdon. 
Jasper Yeates. 
Samuel Finney. 
William Trent. 



1715. 

Joseph Growdon. 
William Trent. 
Jonathan Dickinson. 
George Roehe. 

1718. 

David Llojd. 
William Trent. 

1726. 

David Llojd. 
R. Hill. 
R. Asheton. 

1731. 
James Logan, C. J. 

1739. 

Jeremiah Langhorne. 
Thomas Graeme. 
Thomas Griffiths. 

1743. 

John Kinsey. 
Thomas Graeme. 



1743. 
William Tell. 

1750. 

• William Allen. 
Lawrence Growdon. 
Caleb Cowpland. 

1759. 

William Allen. 
Lawrence Growdon. 
William Coleman. 

1764. 

William Allen. 
William Coleman. 
Alexander Stedman. 

1767. 

William Allen. 
William Coleman. 
John Lawrence. 
Thomas WiUin?. 



William Allen. 
John Lawrence. 
Thomas Willing. 

1774. 

Benjamin Chew. 
John Lawrence. 
Thomas Willing. 
John Morton. 



BEFORE THE REVOLUTION. 297 



ATTORNEYS GENERAL OF THE PROVINCE OF PENNSYL- 
VANIA. 

1. John White, 25th October, 1683, and 17th November, 1G85, Spe- 

cially appoiuted. 

2. Samuel Hensent, IGth January, 1G85; to prosecute all ofiFenders 

against her penal laws. 

3. David Lloyd, 24th April, 1686. 

4. G. Lowther, 23d September, 1706. 

5. Andrew Hamilton, 1717. 

6. Joseph Growdon, Jun., 5th March, 1725. 

7. John Kinsey, 6th July, 1738. 

8. Tench Francis, 1741. 

9. Benjamin Chew, 27th January, 1755. 

10. Andrew Allen, 4th November, 1769. The last Attorney General 
under the kins'. 



VOL. I. — 20 



CHAPTER III. 



THE JUDICIARY. 



APPOINTMENTS— TENURES— SALARIES. 



Down to the year 1756, when Lord Mansfield, in the 
fifty-first year of his age, first took his seat as Chief 
Justice of the Court of King's Bench, with the excep- 
tion of Gascoyne, Coke, Hobert, Hale, Holt, Somers, 
Clarendon, Yaughan, and a few others, there was no 
Chief Justice, either in the Common Pleas or Kuig's 
Bench, who, for his good deeds, deserves to be remem- 
bered. And even Coke, with all his learning, indus- 
try and firmness, was essentially an arbitrary, heart- 
less, selfish tyrant, who led the way, by his brilliant 
and powerful example, to many of the cruelties and 
murders, that afterwards stained the criminal jurispru- 
dence of England. Thus it is, that one strong man 
may do more in the way of evil, than twenty weak 
ones, as he is quoted as an example and excuse. 



THE JUDICIARY. 299 

Coke is entitled, with all his talents, to rank with 
the "Bloody Judges," and his praise will be min- 
gled with the censure of all just men, in all time to 
come. His conduct towards the illustrious though 
unhappy Raleigh, and his unsparing malignity towards 
Lord Bacon, both of whom, with all their faults, were 
infinitely his superiors, will last as long in history as 
he does, and more than obscure his legal fame. And it 
was well said by Lord Mansfield, while solicitor-gene- 
ral, in defending himself against the charge of adhering 
to the pretender, — " If I had been counsel for the crown 
against Sir Walter Baleigh, and the unfortunate man 
had been as clearly guilty of high treason as the rebel 
lords, I would not have made Sir Edward Coke's 
speech against him, to gain all Sir Edward Coke's 
estate, and all his reputation." Such were the senti- 
ments of one, who afterwards became the most accom- 
plished judge, in all respects, that ever adorned an 
English court. 

Take Coke for all in all, though a great lawyer, he 
was a had man, in his private as well as his public 
relations ; and therefore certainly not a great man. 
He would have been long since forgotten, or, if still 
remembered, remembered only to be condemned, had 
it not been that his history is so connected with that 
of the common law, as to render them inseparable. 
His law reputation, therefore, will probably endui'e as 
long as the legal profession lasts. 



300 THE FORUM. 

As the Greek and Roman poets and philosophers 
are perpetuated by collegiate instruction, so Coke and 
some of his cotemporaries, being looked to as the 
founders and pillars of a great science, are still wor- 
shipped with a sort of superstitious awe and reverence ; 
yet there have been better philosophers than Aristotle, 
or Plato ; better poets than Homer, or Virgil, and 
better lawyers than Sir Edward Coke. Still, such is 
the force of traditionary, scholastic and professional 
prejudice, that three-fourths of the bar wiU, no doubt, 
raise their hands in holy horror, against this extraordi- 
nary attack upon the law's anointed. 

With the exception of the judges that we have 
referred to, we repeat, there were few or none, worthy 
of regard or respect. They were the mere punps and 
panders of the crown, and they received then- appoint- 
ments, for the most part, lecause they were so. The 
law, as they administered it, was just what his majesty 
pleased, or what judicial popularity was supposed to 
require. There was scarcely even a pretension to 
character, decency, or fitness among them. Some of 
them had been foot-pads — some drunkards and de- 
bauchees — some destitute of all learning — some in- 
mates of prisons — some executed, and others deserving 
to be so. Even the infernal Jeffries, was hardly su- 
preme in his "bad eminence," although literally crushed 
to death under the heavy curses of an outraged people, 
and without the aid of a single voice, to say " God 



THE JUDICIARY. 3QX 

bless him," in his extremity. Since their time, how- 
ever, judicial manners, morals and talents, have much 
improved in the mother country; and her judiciary 
have long continued to be looked upon as objects of 
esteem and veneration, instead of contempt or abhor- 
rence. 

During the reign of Elizabeth, and James the First, 
the puisne judges of the King's Bench and Common Pleas 
held, Quam diu nobis plaeuerent ; and the judges of the 
Exchequer, Quam diu henese gesserint; but in 1640, the 
patents of all the judges ran, durante hene 'placito — after- 
wards thtey were changed, and again ran, ^'^qiiam diu" 
&c., but this being found inconvenient from those offices 
not being entirely dependent on the crown, the old 
form of the patent, " durante bene placito" was restored 
and so continued until the early part of the reign of 
George the Third, when the judges ceased to be utterly 
dependent upon the royal will, or the machinations of 
ministers, and were placed upon the same footing as 
with us ; holding their offices upon the more reasonable 
and equitable footing of their own "good behaviour;" 
the result of which is, that the last century has not 
only furnished no legitimate successor of Jeffries, or 
Wright, or Norbury, but no remote imitation of any of 
the monsters who, before the revolution, while arrayed 
in judges robes, degraded their high callmg, and pro- 
faned the very sanctity and sacristy of virtue. The 
waves of innocent blood have at length subsided, and 



302 THE FORUM. 

justice and mercy, moderation and truth, and wisdom, 
and virtue, now sway the sceptre and suspend the scales, 
which were for a time wrenched from them by iniquity 
and cruelty, rashness and rudeness, folly and wicked- 
ness. May this salutary and glorious reform be per- 
petual. 

With the American Courts, during somewhat less than 
a century, incompetency has been the exception, not 
the rule, and want of honesty has never been charged 
against an American judge, and perhaps never been 
suspected. The tenure for " life or good belmviour," 
has been most salutary, and admirably adapted to our 
system of government. The results are its best com- 
mentary : no judge with us has ever been removed or 
impeached for corruption^ or deserved to be so removed 
or impeached. On the contrary, whatever may be 
thought of the competency of some of our judges, or the 
incompetency of what were called Governor Snyder's 
" common sense Associate Judges," they have, one and 
all, on the score of integrity and general respectability, 
been unexceptionable. They may have had blemishes 
or faults ; but certainly cruelty or dishonesty was not 
among them ; and it may be generally said, that an 
abler or purer body of men, has rarely graced the judi- 
cial seat in any country. 

This difference between the English and American 
courts has been dependant, no doubt, partly upon the 
different forms and principles of the governments — 



THE JUDICIARY. 3()3 

partly upon the modes of appointment, and probably 
not a little attributable also to the "^z hene gesscrinf 
clause, provided for by our Constitution, and omitted 
in the Enghsh statute. Until recently, judges Avith us 
received their offices from the Executive of the state, 
with the approval or consent of the senate, and held 
their posts for life, " or so long as they should behave 
themselves well." 

By the constitution adopted on the 22 nd of Febru- 
ary, 1838, as appears by the fifth article, their life 
tenure was changed to an office for years. 



CONSTITUTION OF PENNSYLVANIA. 

OF THE JUDICIARY. 

Art. 5. — Sec. 11. The Judges of the Supreme Court, of the 
several courts of Common Pleas, and of such other courts of record 
as are or shall be established by law, shall be nominated by the 
governor, and by and with the consent of the senate, appointed and 
commissioned by him. The Judges of the Supreme Court shall 
hold their offices for the term of fifteen years, if they shall so long 
behave themselves well. The president Judges of the several courts 
of Common Pleas, and of such other courts of record as are or shall 
be established by law, and all other judges required to be learned 
in the law, shall hold their offices for the term of ten years, if they 
shall so long behave themselves ivell. The Associate Judges of the 
courts of Common Pleas, shall hold their offices for the term of five 
years, if they shall so long behave themselves icell. But for any 



304 THE FORUM. 

reasonable cause, which shall not be sufficient ground of impeachment, 
the governor may remove any of them, on the address of two-thirds 
of each branch of the legislature. 



OF AMENDMENTS. 

Art. 10. — By the tenth Article, it is provided, that "Any amend- 
ments to the Constitution may be proposed in the Senate or House 
of Representatives ; and if the same shall be agreed toby a majority 
of the members elected to each House, such proposed amendment or 
amendments, shall be entered on the journals, with the ayes and 
nays taken thereon ; and the Secretary of the Commonwealth shall 
cause the same to be published three months before the next elec- 
tion, in at least one newspaper in every county in which a newspaper 
shall be published ; and if, in the legislature next after chosen, such 
proposed amendment or amendments shall be agreed to, by a ma- 
jority of the members elected to each House, the Secretary of the 
Commonwealth shall cause the same again to be published, in man- 
ner aforesaid j and such proposed amendment or amendments shall 
be submitted to the people, in such manner, and at such time, at 
least three months after being so agreed to by the two Houses, as 
the legislature shall prescribe ; and if the people shall approve and 
ratify such amendment or amendments, by a majority of the quali- 
fied voters of the State voting thereon, such amendment or amend- 
ments shall become a part of the Constitution ; but no amendment or 
amendments shall be submitted to the people oftener than once in 
five years, &c. 

The following amendment, (in pursuance of the au- 
thority of the 11th article,) having been agreed to by 



THE JUDICIARY. 305 

the legislature, at the sessions of 1849 and 1850, was 
ratified by a majority of the qualified voters of the 
State of Pennsylvania, at the general election, held in 
a majority of the members elected to each house of the 
October, 1850, and thereby became a part of the Con- 
stitution. 



AMENDMENT. 



Article 1. — The judges of the Supreme Court, of the several 
Courts of Common Pleas, and of such other courts of record as are 
or shall be established by law, shall be elected by the qualified elec- 
tors of the Commonwealth, in manner following, to wit : The judges 
of the Supreme Court by the qualified electors of the Commonwealth 
at large : the president judges of the several Courts of Common 
Pleas, and of such other courts of record as are or shall be estab- 
lished by law, and all other judges required to be learned in the 
law, by the qualified electors of the respective districts over which 
they are to preside, or act as judges ; and the Associate Judges of 
the Courts of Common Pleas, by the qualified electors of the counties 
respectively. The judges of the Supreme Court shall hold their 
offices for the term of fifteen years, if iJiey slmll so lo7ig beJiave 
themselves well, (subject to the allotment hereinafter provided for, 
subsequent to the first election.) The president judges of the seve- 
ral Courts of Common Pleas, and of such other courts of record as 
are or shall be established by law, and aU other judges required to 
be learned in the law, shall hold their offices for the term of ten 
years, if they shall so lo?ig behave themselves well ; all of whom 
shall be commissioned by the Grovernor; but for any reasonable 
cause, which shall not be sufficient ground of impeachment, the 



3Qg THE FORUM, 

Grovernor shall remove any of them, on the address of two-thirds of 
each branch of the legislature, &c. 

Thus life appointments, it appears, in February, 
1838, were clianged to terms for years; and, in 1850, 
the appointments became elective, instead of "execu- 
tive with consent of senate :" but the clause of good 
behaviour still remains, accompanied and sanctioned 
by the judicial oath. 

The proposal to substitute the tenure for years, for 
tenure for life, was powerfully but unavailingly opposed 
in the convention at which the constitution was 
adopted ; and although by a constitutional vote of the 
people, the amendment providing for the election of 
judges was finally ratified, the passage of the article 
submitted to the popular vote was strenuously resisted 
in the legislature, by some of the ablest of its members. 
It is not necessary to refer to the arguments for or 
against it ; they are best presented in the reports of 
the debates of the time, to which the curious or inqui- 
sitive are referred. Let it suffice that, in this age of 
experiment, hope triumphed over experience, and the 
judges became elective and temporary, instead of receiv- 
ing their appointments as theretofore from the governor, 
through the senate. Hitherto there has been no reason 
to complain of the result. The judges, elected through 
the popular and political vote, have been unexception- 
able — competent lawyers, of great experience ; of untir- 
ing industry, and undoubted honesty. With one or two 



THE JUDICIARY. 3()7 

exceptions, none of them were very highly distinguished 
or extensively known as advocates; but probably as 
much so, as many of their predecessors. This is, 
perhaps, rather a recommendation than an objection, 
for we do not agree with Lord Brougham, Lord Ers- 
kine, or Lord Campbell, that men of extensive busi- 
ness, and distinguished eloquence at the bar, make the 
best judges. And the noble lords referred to, who were 
the most distinguished barristers of their day, cannot 
themselves be cited as furnishing, in their judicial career, 
an enforcement or confirmation of their own theory. 

Li this country, experience has taught the same les- 
son. James Wilson, who ranked with the first class of 
lawyers, and who afterwards was raised to the Supreme 
Court of the United States, gained nothing in reputa- 
tion by the exchange ; but, in the language of one of 
the ablest of his cotemporaries, " Mr. Wilson on the 
bench was not equal to Mr. Wilson at the bar." 
Nor did Jared LigersoU, Moses Levy, or Charles 
Huston, all men possessed of the highest legal attain- 
inents, — of the most persuasive eloquence, — increase, 
while, in their judicial posts, the laurels which they 
had deservedly acquired at the bar. The reason 
of this, as suggested elsewhere, would seem to be, 
that the duty of a judge is didactic, that of a bar- 
rister argumentative. The former looks upon the 
whole of a cause without bias or partiality ; the latter 
identifies himself with his client, and, while he views 



308 THE FORUM. 

everything that makes for him with favorable eyes, 
looks upon everything that operates against him, with 
suspicion and distrust. A lawyer in full practice, 
when elevated to the bench, cannot change his habits 
with his position, or turn the current of his thoughts 
or his practice back upon itself. This metamorphosis 
will be attempted, of course, because duty demands it ; 
but it is not a work of ease or of a moment, but of labor 
and of years. Even Lord Campbell himself seems to 
adopt those views ; and expresses them much better than 
we could, when he says, in his lives of the chief justices : 

" The celebrated advocate, wlien placed on the bench, embraces 
the side of the plaintiff or of the defendant, with all his former zeal: 
and, unconscious of partiality or injustice, in his eagerness for victory, 
becomes unfit fairly to appreciate conflicting evidence, arguments, 
and authorities. The man of a naturally morose or impatient tem- 
per, who had been restrained while at the bar by respect for the 
ermine, or by the dread of offending attorneys, or by the peril of 
being called to a personal account by his antagonist for impatience, 
when he is constituted a living oracle of the law, puffed up by self- 
importance, and revenging himself for past subserviency, is insolent 
to his old competitors ; bullies the witnesses and tries to dictate to 
the jury. The sordid and selfish practitioner who, while struggling 
to advance himself, was industrious and energetic, having gained the 
object of his ambition, proves listless and torpid, and is quite content 
if he can shuffle through his work without committing gross blunders 
or getting into scrapes. Another, having been more laborious than 
discriminating, when made a judge, hunts after small or irrelevant 
points, and obstructs the business of his court by a morbid desire to 
investigate fully, and to decide conscientiously. The recalcitrant 



THE JUDICIARY. 



309 



barrister, who constantly complained of the interruptions of the court, 
when raised to the bench, forgets that it is his duty to listen and be 
instructed, and himself becomes a by- word for impatience and loqua- 
city. He who retains the high-mindedness and noble aspirations 
which distinguished his early career, may, with the best intentions, 
be led astray into different courses, and may bring about a collision 
between different authorities in the State, which has long moved 
harmoniously, by indiscreetly attempting new modes of redressing 
grievances, and by an uncalled for display of heroism." 

But the question is not as to whether the best advo- 
cates will make the best judges ; but whether judges 
chosen by a popular and political vote, for a term of 
years, are more eligible, than judges appointed for hfe 
hy the executive, and confirmed by the senate. 

As to the mere appointing power, it may be said 
that the people elect the governor and the senate, and 
that therefore the only difference is, between their voting 
for the judges directly, and those judges being appointed 
by others, whom the people have chosen for the execu- 
tive or legislature. That, in either case, the judges are 
jt?o/^V^c«/ judges. But let it be remembered that judges 
are but men, and subject, to some extent, to human 
influences ; that they are doiibly subject to them, by 
holding their appointments for terms of years, and 
being dependent upon re-election for contmuance of 
oflice ; that this brings them into close connexion with 
party politics and partizans, upon whom that election 
directly depends ; that those very persons are, from time 



3]^Q THE FORUM. 

to time, suitors or parties before tlie courts, or exercise, 
or may exercise, influence over their salaries, or expect 
favors which no judge would grant, or suspect favors 
where none could be granted. By this state of things 
our judges, though better men, are brought into the 
condition of those government judges who pandered to 
the whim, will, pleasure, or caprice of the appoiating 
power to secure their places. 

" No man," says Lord Brougham,* " can be a judge 
in England, who is not of a particular party, unless he 
profess himself to be devoted to one scheme of policy ; 
unless his party happen to be the party connected with 
the crown, or allied with the minister of the day, there 
is no chance for him — that man is surely excluded." 
Nor is the doctrine much better adapted to the latitude 
of England than of the United States. We are speak- 
ing to human nature, and not to individuals, when we 
seriously ask. How is it possible that judges, who, for 
the most part, receive their offices in requital of their 
political party devotion, should, in contemplating their 
services at the polls —not at the bar — forget the pro- 
bable reward of continued fidelity to the ruhng power ? 

There is another objection that arises out of "poli- 
tical appointments — terms for years and inadequate 
salaries;" and especially the latter. You find the 
judges, from actual necessity — which it is said has 

■* Brougham's Speech upon the Reform of the Laws of England. 



THE JUDICIARY. ^^I 

no law — annually presenting their appeals, almost in 
forma pauperis, to the Legislature, for an additional 
allowance. This is much to be deplored, yet not easily 
avoided. 

But, we are told, the application is made by the 
bar — not the judges. The bar, in truth, have pro- 
perty nothing to do with it; and if they had, they 
adopt awkward means and unseasonable times, in order 
to its accomplishment. There is an indelicacy in the 
movement, that must shock and humiliate even those for 
whose just pecuniary advantage it is designed. A meet- 
ing is got up, as it were, under the very noses of the 
judges ; a committee is appointed to visit Harrisburg ; the 
newspapers teem with mingled hopes and fears of the 
result ; and after a sort of system of log-rolling, no tiling is 
done. Delicate, deliberate, and effective means, should 
be adopted, corresponding with the moral dignity of the 
bench, and the honesty and integrity of the bar. The 
Legislature should, especially, and without sohcitation, 
guard the rights and safety of the judiciary, a co-ordi- 
nate branch of the government; and not, in their devo- 
tion to mere artificial, financial, or local improvements, 
"like the base Judean, throw a pearl away, richer than 
all their tribe." 

There are men at the bar who, being unable to rise by 
direct means, or by force of their own unassisted abilities, 
endeavor thus to secure favor with the courts. That 
favor, whether actual or imaginary, attracts clients, 



^^2 THE FORUM. 

and consequently extends business. How is tMs object 
to be attained ? By getting up a project for the in- 
crease of judicial salaries. Petitions are annually circu- 
lated. The toadies and supernumeraries, of course, all 
sign ; those who are indiiFerent sign, as they are wilhng to 
advance the interest of others; and those who are actu- 
ally opposed (not to the ohj'ect but the means) also sign, 
as they do not wish to incur the antipathies of tribu- 
nals — ^that should have no antipathies — that should ask 
no favors and fear no frowns. What can be more unfa- 
vorable to a due and impartial administration of justice 
than such a course ? It subjects the judges to obliga- 
tions to the bar, which they may not acknowledge, but 
still must feel. And it at the same time lowers the 
reputation of the members of the bar, 

"Who crook the pregnant hinges of the knee. 
That thrift may follow fawning." 

I agree with the doctrine of Angelo, that it is " one 
thing to be tempted, and another tiling to fall ;" jet 
from a source of hi(ji her vfisdom. we are taught to '"'pray 
against temptation." But even if the duties of the judi- 
ciary should be, as they at present are, impartially and 
faithfully performed, the very influences to which they 
(zppear to be exposed, but which they honestly resist, are, 
by disappomted suitors or vindictive men, conjured up 
and relied upon to support unfounded slanders, by which 
the sacred ermine of justice is suUied and disfigured. 



THE JUDICIARY. 



Now, the integrity and purity of our present judi- 
ciary may be proof against all these difticulties and 
assaults. Still, how long are thet/ to last, and who are 
to succeed them ? Ay, there's the rub ! Death, party 
political changes, resignations, casualties, all or any of 
them, may produce vacancies. How are those vacancies 
to be filled, as our elections are now regulated ? Like 
the witches' cauldron in Macbeth, the polls are made up 
of every variety of ingredients, and attended w^ith every 
variety of incantation. Which spell shall prove most 
powerful ? Abolition or anti-abolition — temperance or 
intemperance — rehgion or impiety — laws or outlaws — 
increased or diminished salaries ? All these subjects, 
and a thousand others, will be agitated, and, finally, in 
one shape or another, find a footing in our courts of 
justice. There they must be heard and determined ; 
and can any man who looks to men as mortal, and to 
the justice of the country as co-extensive with the 
country, and contemporaneous with its duration, look 
to the crisis, which sooner or later must arrive, with- 
out anxious and fearful anticipations. 

We remember a judge, as honorable and high-minded 
a man as ever sat upon the bench, who had exhausted 
his private fortune, and been reduced to compara- 
tive starvation, by the miserable and stinted pittance 
which the laws allowed; having stated that one of the 
greatest penalties he endured, arose from his seeing 
lawyers at the bar engaged in an argument before him 

VOL. I. — 21 



3X4 THE FORUM. 

— -jurors on the panel — or parties to a suit — to all of 
whom he owed debts, that he could not at once dis- 
charge. "Now," said he, "all of these, either consider 
me under obligations to them, and expect favor or in- 
dulgence, which it would be incompatible with my 
duty to grant ; or, if I wrong them in this, the belief 
itself renders me unhappy, and impaii's my sense of 
judicial independence; though God knows, I would 
beg or die, before I would knowingly violate my 
duty." 

This is a painful picture, but to a generous mind, is 
it worse than the other besetments to which we have 
referred, which no prudence, or economy, or skill, can 
guard against, and which require, as Milton says, " a 
dragon watch, with wwenchanted eye." 

The only cure that can be suggested for the pros- 
pective evil, is that which we trust may be apphed. 
It has so turned out, whether by chance or popular 
wisdom, that just and meritorious men have hitherto 
been chosen to administer the laws ; there is nothmg to 
prevent then- continuance during life, without regard, 
therefore, to social or party prejudices, let all good men 
unite in confirming them in their present situation. We 
know what we have, but no man knows what we might 
have ; and although rotation in office, is a favorite doc- 
trine of the democracy, heaven forbid that it should ever 
be extended to the judiciary. " Old judges and settled 
laws — new judges and reform." Bad decisions are 



THE JUDICIARY. 3^5 

better than no decisions, and variable judgments are 
worse than none; for they leave men in increased 
doubt as to their relative or respective rights. If you 
change the judges as often as the law would allow, by 
the time they are familiar with their duties, and at 
home in their seats, and established in their system, 
you will displace them for new men, who in their turn 
shall give place to others, and thus produce what Ad- 
dison calls " a regular confusion," from which nothing 
but a miracle can redeem you, " and miracles," says a 
wise man, " are not resorted to by the Almighty, for 
the purpose of curing the follies, or relieving against 
the vices of his creatures." 

It may be said, that in Pennsylvania we have no 
limit of age, as they have in New York, and that the 
course suggested may be attended with disadvantage 
in the administration of justice, by continuing judges 
on the bench long after their intellectual vigor and legal 
competency may have been impaired. Chancellor 
Kent lived until he was upwards of eighty, in the full 
possession of all his faculties and all his varied and 
extensive learning, after having been legislated out 
of his office of Chief Justice of the Supreme Court of 
New York, upon arriving at the age of sixty. Chief 
Justice Marshall of the Supreme Court of the United 
States, was about the same age at the time of his 
death, and no man ever imagined that his great mind, 
or the soundness of his judgment, had in the least 



316 THE FORUII. 

deteriorated. Most of the ablest judges of England 
were the" eldest judges 5 and in short, without entering 
into an elaborate argument upon this subject, it may 
be said, that advanced age is far from being indicative 
of unfitness for a judicial post ; but upon the contrary, 
it bears with it generally an experience and a dignity, 
which would rather recommend it to a judicious prefer- 
ence. There may be, to be sure, exceptions — and so 
there may be at fifty, as well as at eighty ; but mere 
exceptions, scarcely furnish a sufficient ground for 
general exclusion or proscription. When it happens 
that age, disease, or infirmity of any kind, unfits a 
judge for the performance of his duty, he might be 
placed upon a retiring list, in order to make room for 
a more efficient successor. True, there is no provision 
by law for pensions to judges in such CKCumstances, 
but there is much reason why there should be. Hu- 
manity and justice would both seem to require it. 
The review of " Lord Brougham's Speech on the Re- 
form of the Law," from which the following passage is 
extracted, expresses upon this subject, the ideas which 
we entertain: — ^ 

" The faitliful servant of the State, who has devoted his best days 
to the service of his country, should, when ambition ceases to be a 
virtue, be invited to his repose. The few remaining years of a valu- 

* Brown's Review of Lord Broiig]iam"s speech on the State of the Lavr. 
published in 1828. 



THE JUDICIARY. 3^7 

able and venerable life, instead of being exhausted in unavailing 
efforts to support the burthen which was the glory of past days, 
should be cherished and sustained by the grateful munificence of the 
nation he has blessed ; thus, the infirmities of the great may be con- 
cealed, the benefit of their example secured, and the honor of the 
people vindicated. Again; rewards of this description might be 
regulated by the age and condition of the judge, without invidious 
distinction, and we should thus be spared the distressing spectacle 
sometimes exhibited, of a plain and palpable struggle between time 
and eternity — between the grave and the judgment seat. 

" To resign those honors, which the hands are too feeble to grasp, 
and the mind too infirm to enjoy, would scarcely require a groan : 
but to resign and starve — to relinquish station and the means of life 
together, is a penalty far beyond what human nature will voluntarily 
encounter. Hence the administration of justice may, in some in- 
stances, become a by-word and reproach, and the fortunes, and lib- 
erties, and lives of the community, are totally jeoparded, strange as 
it may seem, for the purpose of subserving a penurious policy, and 
avoiding the horrors of increased exposure. Better, much better, 
would it be, that the public coffers should be drained, than that the 
judicial character should be thus degraded, and the rights of the 
community thus despised. 

" When ancient senators pointed to their poverty as an evidence 
at once of their frugality and incorruptibility — even then the grati- 
tude of their countrymen repaid them fc4" their privations and their 
sacrifices, by honors and triumphs which the wealth of Croesus was 
too poor to buy. But the times are changed, and honors are now 
degraded by an ostensiMe pecuniary equivalent, which, while it robs 
the recipients of all glory, consigns them to actual misery. We a?e 
told, forsooth, that hc' is paid; not upon the principle that the 
grateful mind by owing, owes not, but upon the footing of mere 
purchase and sale. In truth, he never can be paid for the benefits 
that he confers on Hs country, or the privations to which he is sub- 



318 THE FORUM. 

jected in the fulfilment of the highest of all public trusts — ^the faith- 
ful and the fearless administration of the laws. 

" We have pensioned and half-pay officers, in the army and navy — 
we have modifications of pay, regulated by being in or out of actual 
service ; and no reason can be conceived, why similar provisions 
should not be adopted in regard to the Federal and State Judiciary. 
Certainly there is nothing in the character of military services, cal- 
culated to impart to them a higher claim to liberal consideration, 
than that which may be fairly challenged by the majesty of the 
laws, and the administration of the justice of the country." 

We are aware, notwitlistanding wliat has been said, 
that there may be objections to retiring pensions, 
even with any modifications that can be suggested ; 
but certainly, there can be no available objections to 
the enlargement of salaries. In adopting tliis course, 
you enable a judge not only to live in becoming decency 
and comfort, but to lay up, by a prudent economy, what 
may protect his family from want, after he has been 
gathered to his fathers. The judicial salaries have 
borne no sort of proportion to the progressive busi- 
ness, increase, and wealth of the State. If the judges 
are what tliey should be, it is perfectly clear the com- 
pensation for their services is not what ii sJioidd he ; 
but if we are to adopt the notion, that the worth of a 
thing is what it will bring — judging from their salaries, 
the judiciary are of very httle value. If this be so, 
get rid of them ; if it be not so, pay them — at least, 
sufficiently, to prevent beggary to themselves, and dis- 



THE JUDICIARY. ' oyj 

honor to the State. Tully, truly observes, "fortes 

ET SAPIENTES VIROS, NON PRiEMIA, SEQUI 'sOLERe' RECTE 

TACTORUM QUAM iPSiE RECTE FACTA." The great and 
the wise perform great actions, not so much for the 
rewards attending them, as on account of their intrin- 
sic excellence. Still, the great and the wise, in order 
to the performance of great actions, or high public 
duties, must live ; and it does not become a nation or 
a State, to exhaust all the learning and labours of her 
faithful functionaries, and then to repay them with a 

MAXIxM OR A proverb. 



CHAPTER lY. 

GALLERY OF PORTRAITS — THOMAS M'KEAN, L.L.D. 

It is said by a learned and distinguished writer, 
" that to trace a single word through all its modifica- 
tions, varieties, and diversities of use, from its origin 
to the present time, would be su^^erior, in point of 
interest and utility, to the description of a campaign."* 
If this be so, what must be the interest, properly con- 
sidered, of the lives of illustrious men, embracing their 
intellectual, social, moral, professional, or official cha- 
racter, the value of their services, the benefit of their 
example to their cotemporaries, and the lasting bene- 
fits conferred by them upon posterity. 

History is distracted by a multiplicity of diversified 
events, and diffused over men and natures. Biography 
concentrates the mind upon a single object, and brings, 

* Trench, on Words. 



THOMAS M'KEAN. ' 321 

as it were, the hearts of men into a direct sympathetic 
communion with each other. 

We are aware, that when the life portrayed is of 
itself embellished and rendered redolent by rare moral 
and social qualities, and when the impression of those 
qualities remains fresh in the mind and affections of 
the public, biography languishes under the weight of 
its task, and often not only falls short of the expecta- 
tion of the community, but of the merits of the indi- 
viduals designed to be commemorated and embalmed. 

A portrait from life, or a cast taken after death, 
is tested by traditions, recent recollections, and rigid 
comparison, and its defects or faults are readily per- 
ceived, and unsparingly and deservedly condemned. 

It is not therefore remarkable that the sketches of 
eminent men, however ably and skilfully drawn, fre- 
quently degrade rather than exalt the character in- 
tended to be exhibited. They may magnify the mean, 
but invariably diminish the great. 

The lives of all who have lived during our time have 
held a higher place in our estimate, when left to our 
own direct interpretation and judgment of their actions 
and motives, than when presented to us throagh the 
medium of the description of others. 

But, without dwelling upon the dif&culties of the 
task here assumed, or excusing by anticipation its 
imperfect performance, we proceed at once to the dis- 
charge of our duty, which is to pay a grateful and 



322 THE FORUM. 

sympathetic tribute of enduring reverence to departed 
worth. In approaching the consideration of the judi- 
ciary of the several courts created by the constitution 
and the laws of the Federal and State governments, it 
would be unnecessary, if not useless, to bestow any 
attention upon the origin, jurisdiction, or powers of 
these tribunals, as they are exhibited on the face of the 
statutes, and are so familiar to all, and particularly to the 
members of the bar, as to render a studied and detailed 
exposition of them a matter of supererogation. This is 
not a treatise upon the laws, or upon the organization 
of the courts of justice, but upon- the various modes of 
administering the law, and the functionaries through 
whose official agency they are judicially administered. 
The laws stand, and we trust ever will stand, and they 
speak for themselves. The judges have passed, or are 
passing away, and the "places that once knew them 
shall know them no more." 

As Time reconciles or controls conflicting Dignities, 
we have, instead of entering upon the question of pre- 
cedency between the judges of the Federal and State 
courts, thought proper to present them in the order of 
their appointments, leaving their relative or compara- 
tive official merits, to the judgment of others. With- 
out further preface we pass then to the first chief 
justice, after the Declaration of Independence. 



THOMAS M'KEAN. ' 323 



THOMAS M'KEAN, 

FIRST CHIEF JUSTICE OF THE SUPREME COURT OF PENNSYLVANIA. 
BORN, 1734— APPOINTED, 1777— DIED, 1817. 

Thomas M'Kean, one of the illustrious signers of 
the Declaration of Independence, was the first chief 
justice of the Supreme Court of Pennsylvania, after 
the Declaration of Independence. He was appointed 
to that post on the 28th of July, 1777, and continued 
therein until the year 1799, when he was elected 
governor of the commonwealth, and was succeeded as 
chief justice by Edward Shippen, who, from June 31st, 
1791, until the resignation of Mr. M'Kean, had been 
an associate judge. 

Judge Shippen, whom, having referred to, we must, 
in passing, briefly notice, was the son of Edward Ship- 
pen, merchant, and Sarah Plumley, and was born on 
the 6th of February, 1729, at PhUadelphia. The father 
was one of the considerable men of the province of 
Pennsylvania; was active in the erection of Nassau 
Hall, (Princeton,) and also promoted the founding of 
the University of Pennsylvania. He was also a judge 
under the British and State governments; founder of 
Shippensburg ; and, though very old at the time, was 
far from inactive through our revolutionary struggle. 
Edward Shippen, Jun., the subject of this notice, was 
sent to London for legal education at the Middle 



324 THE FORUM. 

Temple; and, upon his return to Philadelphia, was, 
on the 20th of September, 1750, upon producing his 
certificate of being an utter barrister* of the Society 
of the Middle Temple, admitted to practice in the Su- 
preme Court of his native State. He was a man of great 
learning, and a safe and excellent judge, possessed 
of most valuable experience, having been many years 
in extensive practice, and having also been upon the 
bench of the Supreme Court, from the 7th of May, 
1791, until he became chief justice, in 1799, upon the 
resignation of Chief Justice M'Kean. 

Chief Justice M'Kean, Judge Shippen, and others 
of their time, were not only well founded in the prin- 

■^ The importance of legal education at eitlier of the Temples iu 
London has been always looked upon with great respect;, and, we think, 
overrated. It depended altogether on the habits of the student. If 
industrious and assiduous, he came forth much improved ; but he was 
left entirely to himself, benefited by no prelections from eminent lawyers, 
or indeed from any one. He enjoyed a sort of legal atmosphere, and 
that may be said to have been all. Mr. Rawle, who was a student of the 
Inner Temple, used to say, that all that was necessary, in order to a 
certificate of " utter barrister," was to prove that you had eaten your 
dinner regularly during the appointed terms. After this, what becomes 
of the slander upon the mode of examination for admission, said to be 
pursued in some of our Western States. Thus : 

Examiner. Do you understand the game of bi'ag ? Can yon make a 
mint julep? Can you drink it ? 

Upon these three questions being answered affirmatively, the candidate 
is considered abundantly qualified, and is admitted to practice, as a mat- 
ter of course. We can conceive of a bar for which these qualifications 
would fit a student exceedingly well — but it is a tavern bar. 



THOMAS M'KEAN. 325 

ciples of law, but they were familiar with the minutest 
points of practice. Several of them had been clerks 
or prothonotaries, and knew all the duties of the office 
— the forms of writs, the returns, pleadings, rules, 
exceptions, and the whole course of proceedings — 
certainl}^ a most important branch of knowledge, as 
a want of knowledge of such practical details is very 
apt, as we have known, to embarrass a judge, and 
lead to misunderstanding and confusion. They may 
be deemed small matters, but they have an effect upon 
judicial reputation, for a judge is expected to know 
everything. A Jack Tar is reported to have despised 
the knowledge of the chief justice of the King's Bench, 
because he did not know what was meant by the nau- 
tical terms, " Abaft the binnacle, and douse glim I" 
That might have been excusable, but not so the want 
of knowledge of what appertains to a man's own pecu- 
liar profession, or sphere of life. 

When Judge Shippen became chief justice, he was 
seventy years old ; not a remarkable age, considered 
in reference to many of the judges of England, and who, 
at that time of life, would seem, from being called 
junior judges, to be only in their prime ; but, apart 
from that, Judge Shippen was of a long-lived family, 
of great vigor of constitution, and fully retained his 
mental and physical powers unto, a very short time 
before his death. He was an agreeable, unassuming, 
and prepossessing gentleman, of a kind heart, and dig- 



326 THE FORUM. 

nified personal appearance,* and he was beloved and 
venerated hj all who knew him. In December, 1805, 
feeling the infirmities of years coming over him, and 
admonished by his own reflections of the importance 
of some interval between the active concerns of this 
life and a due preparation for a better, he resigned his 
situation as Chief Justice ; and on the sixteenth day 
of April, 1806, ripe ui years and honors, and full of 
faith in his Redeemer, surrendered his soul unto God 
who gave it. 

" Nomen in exemplum servabimus gevo." 

But to return to Mr. M'Kean. He was born in 
Chester county, Pennsylvania, on the 19 th day of 
March, 1757. He was of Irish extraction; the son 
of WiUiam M'Kean, who married a lady by the name 
of Letitia Finney. He studied law in the office of 
David Finney, a maternal uncle and lawyer of note, at 
Newcastle, and was admitted to practice in the Supreme 
Court, in the year 1757; some years prior to which, 
he" had been a clerk of the prothonotary, and afterwards 
prothonotary and register of Newcastle. Subsequently, 
in 1762, he was selected to revise the laws; and 
eventually, as has been said, became chief justice, and 
finally governor, of Pemisylvania, in wliich last office 
he continued for three terms. 

* There is an excellent portrait of him iu the Law Library, a copy 
by Nagle, from an original by Stewart, in the possession of Judge Ship- 
pen's family. 



THOMAS M'KEAN. ' 327 

Judge M'Kean, among those who best knew him, 
was always considered a sound lawyer and an upright 
judge. He, however, although theoretically attached 
to the democracy of the time, was somewhat aristo- 
cratic in his practice, he was a stern and an arbitrary 
man, still one quite susceptible of flattery, fond of offi- 
cial display, and by no means averse to the blandish- 
ments of titles. On this subject it is related of him, 
that shortly after his appointment, a petition was pre- 
sented to him, directed to the Right Honorable Thomas 
M^Kean, Esq., Lord Chief Justice of Pennsylvania, 
upon which he very complacently observed : " These 
are, perhaps, more titles than I can fairly lay claim to, 
but at aU events the petitioner has erred on the right 
side." In opening the session of his courts, it was 
done with great ceremony and form, and the Chief 
Justice held all his attendants to the most rigid observ- 
ance of respectful duty. The judges, it is true, had 
thrown off their wigs, but they nevertheless retained 
the robes and such other appliances, as probably in 
their opinion, contributed to make "ambition virtue." 
In taking their seats at the opening of the court in the 
city, as well as in the counties — with aU their professed 
republican principles — they followed and imitated, at 
no great distance, the example of the judges of the 
English Court of King's Bench. The sheriff, in aU 
his pomp, together with the tip-staves and attendants, 
assembled at the commencement of the term, and 



328 THE FORUM. 

swelled the retinue of tlie Chief Justice and his asso- 
ciates, as they proceeded to assume their respective 
places upon the judicial seat. We mention these cere- 
monies, not to complain of them, but rather to show, 
that it was far easier to cast off aU allegiance to the 
mother country, than altogether to abandon or renounce 
those fashions or follies which were portions of our in- 
heritance. 

Chief Justice M'Kean, though always deemed a very 
able lawyer, and a man of inflexible honesty ; was still 
a man of strong prejudices, jealous of his authority, 
and rough and overbearing in its maintenance. K 
the advocates of his time had not been men of ex- 
alted and unbending principles, his sternness of judi- 
cial deportment would have exercised a most deplor- 
able influence upon the independence of the bar, but 
the aristocracy of genius can neither be awed nor sub- 
dued, and while its possessor cannot but feel conscious 
of its value, it also secui'es the unwiUing homage of 
those, however lofty may be their ofiicial position, who 
would presumptuously venture to attempt to put it 
into "circumscription and confine." A truly great 
man can always measure himself, and measm-e others, 
too, and whatever external tribute he may pay to offi- 
cial dignity, he never forgets his otvn.^ The forms and 
ceremonies of courts enjoin reverence to the sovereign, 
yet it has not unfrequently happened, that even there, 
in the language of Scott, " the immortal bows to the 



THOMAS M'KEAX. 329 

mortal." Nature is so true to herself, that she never 
doffs her cap to artificial greatness, the head may 
sometimes bend, but the heart always holds its place. 

We have said that Judge M'Kean was a stern and 
despotic man; as an instance of it, it is related of him, 
that while Governeur Morris was addressing him, some 
remark that he made gave offence to his Honor, who, 
turning to the counsel, somewhat roughly, commanded 
him to take his seat. Mr. Morris, who was a man of 
lofty spmt, replied, " If, sir, you do not wish to hear 
me, I will cease speaking ; but whether I shall sit or 
stand, depends upon my own convenience, and I prefer 
standingT 

At another time, Mr. Lewis, who was also a firm 
• man, and had, for the most part, great influence with 
the Court, prefaced a motion which he was about 
to make, by saying, that the subject was so uncommon, 
that he scarcely knew in what form to present the ap- 
plication; to which the judge harshly answered, "You 
have been more than twenty years at the bar. Sir, and 
if you don't understand how to make a motion, you had 
better consult your books, and learn." 

It need hardly be remarked, whatever may have 
been his deficiency in civility, that he was a judge of 
great decision and force of character. During the 
course of his long judicial life, he never wavered in 
what his duty seemed to require. 

There are many instances exemplifying his inflexi- 

VOL. I. — 22 



330 THE FORUJI. 

bility in the administration of justice, Tbut to refer to 
them all would be to occupy too much space. Two or 
three cases will serve to furnish an accurate under- 
standing of his supercilious mode of discharging his 
official duty. 

In 1778, he issued a warrant against Colonel Robert 
L. Hooper, a deputy quarter-master, charging him with 
having hbelled the magistrates of Pennsylvania, in a 
letter to Governeur Morris, and commanding the sheriff 
of Northampton county to bring the colonel before the 
chief justice at Yorktown. Colonel Hooper waited 
upon General Greene, at that time next in command 
to Washington, to know whether the circumstances of 
the army would allow his absence. General Greene 
wrote to Chief Justice M'Kean, from Valley Forge 
encampment, od June, 1778, stating that, as the army 
was just upon the wing, he could not consent to Colonel 
Hooper being absent, as there was no one to fiU his 
place ; and requesting that Hooper might be permitted 
to enter into a recognizance to appear at any court 
where he was legally answerable. This letter caused 
the chief justice to flare up, and produced the followmg 
authoritative and peremptory reply : — 



•' Yorktown, June 9tb, 1TV8. 
" Sir : — I bave just now received your favor of tlie 3d instant, and 
am not a little surprised that the sheriff of Northampton county 
should have permitted Colonel Robert L. Hooper, after be was 



THOMAS M'KEAN. 33^ 

arrested by virtue of my precept, to wait upon yoii^ until he had 
appeared before me. 

" You say, sir, ' Colonel Hooper waited upon me to communicate 
his situation, and to know if the circumstances of the army would 
admit of his absence ; but, as the army is just upon the wing, and 
part of it will, in all probability, march through his district, I could 
not, without great necessity, consent to his being absent, as there is 
no other person that can give the necessary aid upon this occasion.' 

" I do not think, sir, that the absence, sickness, or even death of 
Mr. Hooper could be attended with such a consequence, that no 
other person could be found who could give the necessary aid upon 
this occasion ; but what attracts my attention the most, is your 
observation that you cannot, without great necessity, consent to his 
being absent. As to that, sir, I shall not ask your consent, nor that 
of any other person, in or out of the army, whether my precept shall 
be obeyed or not in Pennsylvania. 

" The warrant for the arrest of Mr. Hooper being special, no other 
magistrate can take cognizance thereof but myself. The mode you 
propose, of giving bail, cannot be adopted, for many reasons. 

" I should be very sorry to find that the execution of criminal law 
should impede the operations of the army, in any instance ; but 
much more so to find the latter impede the former. 
" I am, sir, with much respect, 

" Your most obedient, humble servant, 

"TnoaiAS M'Kean. 

" Major-General Greene." 



In the case of Respublica v. The Chevaher de 
Longchamps, he manifests towards the defendant as 
much severity as he does obsequiousness towards " our 
great and good ally/' the king of France. 



332 THE FORUM. 

The defendant, a count of France, was indicted for 
having, on the 17th of May, 1784, at the dwelling of 
the French minister plenipotentiary, in the presence 
of Francis Barbe Marhois, unlawfully threatened and 
menaced hodily harm and violence to the person of 
said Francis Barbe Marhois, he being consul-general 
of France to the United States, and under the protec- 
tion of the law of nations and this commonwealth; 
and that afterwards, on the 19th of May, that he made 
an assault upon and did strike said Francis Barbe 
Marbois, in violation of the laws, &c. 

The defendant pleaded not guilty. 

Under the first count, it was proved that the defend- 
ant said to Marbois, " Je vous dishonnerera Policon, 
Coquin ;" and repeated the words. 

In support of the second count, it appeared that 
he called Marbois a blackguard, in the pubhc streets, 
and struck the cane of Marbois, upon which Marbois 
used his stick with some severity in return. The 
cause of the attack was the refusal of Marbois to 
authenticate certain documents for the defendant, who 
had been an officer in the French army. 

The defendant was convicted, and M'Kean, C. J., 
pronounced the following sentence : — 

"You have been gailty of au atrocious violation of tlie law of 
nations. You have grossly insulted gentlemen, the peculiar objects 
of this law, (gentlemen of amiable characters, and highly esteemed 



THOMAS M'KE AN. ' 333 

by the government of this State,) in a most wanton and unprovoked 
manner ; and it is now the interest, as well as duty, of the govern- 
ment, to animadvert upon your conduct with a becoming severity ; 
such a severity as may tend to reform yourself, to deter others from 
the commission of the like crime, preserve the honor of the State, 
and maintain peace with our great and good ally, and the world. 

" A wrong opinion has been entertained concerning the conduct 
of Lord Chief Justice Holt, anfl the Court of King's Bench, in Eng- 
land, in the noted case of the Russian ambassador. They detained 
the offenders after conviction, in prison, from term to term, until the 
Czar Peter was satisfied, without eveT^oceeding to judgment 5 and 
from this it has been inferred, that the Court doubted whether they 
could inflict any punishment for an infraction of the law of nations. 
But this was not the reason. The court never doubted that the law 
of nations formed part of the law of England, and that a violation 
of this general law could be punished by them ; but no punishment 
less than death would have been thought by the czar an adequate 
reparation for the arrest of his ambassador. This punishment they 
could not inflict, and such a sentence as they could have given he 
might have thought a fresh insult. Another expedient was therefore 
fallen upon. However, the princes of the world at this day ai'e more 
enlightened, and do not require impracticable nor unreasonable repa- 
ration for injuries of this kind. 

" Upon the whole, the Court, after a most attentive consideration 
of every circumstance in this case, do award, and direct me to pro- 
nounce the following sentence : — 

" That you pay a fine of one hundred French crowns to the Com- 
monwealth; that you be imprisoned until the fourth day of July, 1786, 
which will make a little more than two years imprisonment in the 
whole ; that you then give good security to keep the peace, and be 
of good behaviour to aU public ministers, secretaries to embassies, 
and consuls, as well as to all the liege people of Pennsylvania, for 



334 THE FORUM, 

the space of seven years, by entering into a recognizance yourself, 
in one thousand pounds, and two securities in five hundred each 5 
that you pay the costs of this prosecution, and remain committed 
until this sentence be complied -with." 

Again, in the case of Respublica v. Oswald,'^ lie 
showed those stern qualities in a high degree, and they 
were even rendered more conspicuous, from the con- 
trast presented by the conduct of Judge Bryan, who 
seemed to have trimmed his sails rather closely to the 
" popular gale." 

The case was this : — On the 12th of July, 1788, 
Mr. Lewis moved for a rule to show cause, why an 
attachment should not issue for the publication of a 
libel by the defendant, during the pending of a suit 
of Browne v. Oswald. The facts out of which this 
application arose, stood thus : Oswald having inserted 
in his newspaper, "The Independent Gazette," seve- 
ral anonymous pieces against the character of Andrew 
Browne, the master of a female academy in the city 
of Philadelphia, Browne applied to him, to give up 
the authors of those pieces, but being refused that 
satisfaction, he brought an action for hbel against 
Oswald, returnable into the Supreme Court, on the 
second day of July, and therein demanded bail for 
£1000, Previously to the return day of the writ, the 
question of bail being brought, by citation, before ]Mr. 
Justice Bryan, at his chambers, the judge, on a full 

* 1 Dallas's R., 319. 



THOIIAS M'KEAN. ' 335 

hearing of the cause of action, in the presence of both 
the parties, ordered the defendant to be discharged on 
common bail ; and the plaintiff appealed from this order 
to the Court. Afterwards, on the first day of July, 
Oswald published, under his own signature, an address 
to the public, whicli contained a narrative of these pro- 
ceedings, the following passages of which were the 
grounds of this motion : — 

" Had Mr. Browne pursued me in this line, ■without loss of time, 
agreeably to his lawyer's letter, I should not have supposed it extra- 
ordinary; but to arrest me the moment the federal intelligence came 
to hand, indicated that the commencement of this suit was not so 
much the child of his own fancy, as it has been probably dictated 
to and urged on him by others, whose sentiments upon the new con- 
stitution have not; in every respect, coincided with mine. In fact, it 
was my idea in the first progress of the business, that I\Ir. Browne 
was merely the hand-maid of some of my enemies among the fede- 
ralists ; and in this class I must rank his great patron. Dr. Rush, 
(whose brother is a Judge of the Supreme Court.) I think Mr. 
Browne's conduct has since confirmed the idea beyond a doubt. 
Enemies I have had in the legal profession, and it may, perhaps, add 
to the hopes of 7iialignitijj that this action is instituted in the Su- 
preme Court of Pennsylvania ; however, if former prejudices should 
be found to operate against me on the bench, it is with a jury of my 
country, properly elected and impannelled, a jury of freemen and 
independent citizens, I must rest the suit. I have escaped the jaws 
of persecution through this channel, on certain memorable occasions, 
and hope I shall never be a sufferer, let the blast of faction blow 
with all its furies. 

" The doctrine of libel being a doctrine incompatible with law and 



536 



THE FORUM. 



liberty, and at once destructive of the privileges of a free country, 
in'tlie communication of our thoughts, has not hitherto gained any 
footing in Pennsylvania j and the vile measures formerly taken to lay 
me by the heels on this subject, only brought down obloquy upon the 
conductors themselves. I may well suppose the same love of liberty yet 
pervades my fellow-citizens, and that they will not allow the freedom 
of the press to be violated upon any refined pretence which oppres- 
sive ingenuity or courtly study can invent." 

Upon this state of facts, after hearing a full discus- 
sion from Wilham Lewis, for the motion, and Jonathan 
Dickens,on Sergeant, for the defendant, the Chief Jus- 
tice observed : 

" The counsel, in support of their motion, have argued that this 
address was intended to prejudice the public mind upon the merits 
of the cause, by propagating an opinion that Browne was the instru- 
ment of a party to persecute and destroy the defendant ; that he 
acted under the particular influence of Dr. Rush, whose brother is 
judge of this court; and, in short, that from the ancient prejudices 
of all the jvidges, the defendant did not stand a chance of a fair 
trial. Assertions and imputations of this kind are certainly calcu- 
lated to defeat the administration of justice. Let us therefore in- 
quire, first, whether they ought to be considered as a contempt of 
court ; and, secondly, whether, if so, the offender is punishable by 
attachment. And here I must be allowed to observe, that libelling 
is a great crime, whatever sentiment may be entertained by those 
who live by it. "With respect to the heart of a libeller, it is more 
dark and base than that of an assassin, or than his, who commits a 
midnight arson. It is true, that I may never discover the wretch 
who has burned my house or set fire to my barn ; but these losses 
are easily repaired, and bring with them no portion of ignominy or 



THOMAS M'KEAN. . c>q7 

reproach. But the attacks of the libeller admit not of this consola- 
tion ; the injuries which are done to character and reputation seldom 
can be cured, and the most innocent man may, in a moment, be 
deprived of his good name, upon which perhaps he depends for all 
the prosperity and all the happiness of his life. To what tribunal 
can he then resort. It is in vain to object that those who know him 
will disregard the slander, since the wide circulation of public prints 
must render it impracticable to apply the antidote as far as the 
poison has been extended. Nor can it be fairly said, that the same 
opportunity is given to vindicate, which has been employed to de- 
fame him ; for many will read the charge who may never see the 
answer ; and while the object of accusation is publicly pointed at, 
the malicious and malignant author rests in the dishonorable security 
of an anonymous signature. Where much has been said, something 
wiU be believed ; and it is one of the many artifices of the libeller to 
give to his charges an aspect of general support, by changing and 
multiplying the style and name of his performances. But shall such 
things be transacted with impunity in a free country, and among an 
enlightened people ? Let every honest man make this appeal to his 
heart and understanding, and the answer must be — No ! 

" The true liberty of the press is amply secured by permitting every 
man to publish his opinions ; but it is due to the peace and dignity 
of society, to inquire into the motives of such publications, and to 
distinguish between those which are meant for use and reformation, 
and with an eye solely to the public good, and those merely intended 
to delude and defame. To the latter description, it is impossible 
that any good government should afford protection and impunity. 

"If, then, the liberty of the press is regulated by any just prin- 
ciple, there can be little doubt that he who attempts to raise a 
prejudice against his antagonist, in the minds of those who must 
ultimately determine the dispute between them j who, for that pur- 
pose, represents himself as a persecuted man, and assert^ that his 



338 THE FORUM. 

judges are influenced by passion and prejudice ; wilfully seeks to 
corrupt the source, and to dishonor the administration of justice : 
and such evidently was the object and tendency of Mr. Oswald's ad- 
dress to the public. 

" Now can that artifice prevail, which insinuates that the decision 
of this Court will be the effect of personal resentment ; for, if it could, 
every man might evade the punishment due to his off'ences, by first 
pouring a torrent of abuse upon his judges, and then asserting that 
they act from passio?i, because their treatment has been such as 
would naturally excite resentment in the human disposition. But it 
must be remembered, that judges discharge their functions under the 
solemn obligations of an oath ; and if their virtue entitles them to 
their station, they can neither be corrupted by favor to swerve from, 
nor influenced by fear, to desert their duty. That judge, indeed, 
who courts popularity by unworthy means, while he weakens his pre- 
tensions, diminishes likewise the chance of attaining his object, and 
he wiU eventually find that he has sacrificed the substantial blessing 
of a good conscience, in an idle and visionary pursuit." 

Having thus decided the question submitted to the 
Court, the Chief Justice pronounced the following 
characteristic sentence : 

" Having yesterday considered the charge against you, we are 
unanimously of the opinion that it amounted to a contempt of the 
Court. Some doubts were suggested, whether even a contempt of 
court was punishable by attachment} but not only my brethren 
and myself, but likewise, all the judges of England, think that, 
without this power, no court could possibly exist. Nay, that no 
contempt could indeed be committed against us, we should be so 
truly contemptible. 

" The law upon the subject is of immemorial antiquity, and there 



THOMAS M'KEAN. ' 339 

is not any period when it can be said to have ceased or discontinued. 
On this point, therefore, we entertain no doubt. 

" But some difficulty has arisen with respect to your sentence, for 
on the one hand, we have been informed of your circumstances, and 
on the other, we have seen your conduct. Your circumstances are 
small, but your offence is great, and persisted in. Since, however, 
the question seems to resolve itself into this, whether you shall bend 
to the law, or the law shall bend to you, it is our duty to determine 
that the former shall be the case. Upon the whole, therefore, the 
sentence' is, that you pay a fine of £10 to the Commonwealth, be 
imprisoned for the space of one month, that is, from the fifteenth of 
July to the fifteenth of August next, and afterwards, until the fine 
and costs are paid. Sheriff, he is in your custody.* 

It is clear, from the style of Chief Justice M'Kean's 
opinions, that he was a great admirer and imitator 
of Lord Mansfield, and with whom, at one time, he 
held an epistolary correspondence. His views seem to 
have the same frame-work, but while they display more 
energy, they manifest less judicial dignity and mode- 
ration. That he was a great judge, no one will deny; 
but he had not that enlargement of mind, or scope of 
attainment, that entitled him to be considered a great 
man ; he resembled Holt more than Mansfield. With 
all the parsimony that has been attributed to Mans- 
field, it is doubtful whether Judge M'Kean would have 

* 1788. 1 Dallas, p. 329. This sentence led to an attempt to im- 
peach the Chief Justice, in the Legislature of Pennsylvania, which was 
defeated, chiefly by the eloquence of Mr. Lewis. — Vide, Sketch of Mr. 
Lewis, post. 



340 THE FORUM, 

been capable, in bis Lordsbip's circumstances, "wben 
all bis valuable property, and invaluable library bad 
been destroyed by a lawless mob," of declining all 
indemnity from the government. And avoiding all 
murmurs and complaints, Mansfield brougbt no action 
against tbe Hundred, and wben applied to by the 
House of Commons, through the solicitor of the trea- 
sury, for a statement of the value of his property de- 
stroyed by the Gordon mob, he simply rephed : * 

" How great soever the loss may be, I think it does not become 
me to claim or expect reparation from the State. I have made up my 
mind to my misfortune, as I ought, with this consolation, that it came 
from those whose object manifestly was general confusion and de- 
struction at home, in addition to a dangerous and comphcated war 
abroad. If I should lay before you any account or computation of 
the pecuniary damages I have sustained, it might seem a claim, or 
expectation of being indemnified. Therefore you will have no ftu'- 
ther trouble on the subject, from 

" JMansfield." 

The only allusion subsequently made by him, in re- 
gard to his irreparable loss, was contained in his speech, 
vindicating the employment of the military in the sup- 
pression of the mob : — 

" The noble Duke who last addressed the House, mistakes, in sup- 
posing that the employment of the military to suppress the late riots, 
proceeded from an extraordinary exertion of the royal prerogative, 
and in his inference, that we were living under martial law, I hold 



' THOMAS M'KEAxX. ' 34]_ 

that his Majesty acted perfectly aud strictly iu accordance with the 
common law of the land and the principles of the Constitution, and 
I will give you my reasons within as short a compass as possible. I 
have not consulted books, indeed I have no books to con- 
sult !"* 

But to return from tliis episode. It happened, 
upon one occasion, while the Supreme Court was 
holding an important session, during a period of gi*eat 
pohtical and public excitement, a large assemblage 
of persons, and a consequent tumult, occurred, in 
the immediate vicinity of the court room, and inter- 
fered materially with the transaction of business. The 
Chief Justice sent for the sheriff, and directed him im- 
mediately to su23press the riot. The sheriff soon after 
returned and declared his inabihty to do so. "Why, 
sir," said the Chief Justice, "do you not summon your 
posse to your aid ?" " I have summoned them," was 
the reply, "but they are totally inefficient, and the 
mob disregard them." "Why do you not summon 

* Cowper thus refers to his Lordship's lamented loss, iu a vein rather 
more complimentary than poetical : — 

"O'er Murray's loss the Muses wept; 
They felt the rude alarm ; 
Yet blest the guardian care that kept 
His sacred head from harm. 

" The lawless herd, with fury blind, 
Have done him cruel wrong ; 
The flowers are gone, hut stUl we find 
The honey on his tongue." 



342 THE FORUM. 

ME?" said the Chief Justice. The sheriff, looking 
somewhat confused for a time at this direct appeal, at 
length said: "Well, sir, I do summon you;" whereupon 
the Chief Justice immediately left the bench, proceeded 
to the scene of disorder, and seizing two of the ringlead- 
ers, placed them in custody, which, together with the 
influence of his standmg and authority, at once re- 
stored matters to peace. 

We do not vouch for the correctness of this state- 
ment, although it comes from a respectable source, we 
are somewhat led to doubt it, from the fact that a 
similar anecdote is related of Lord Chief Justice Holt, 
whom, indeed, in many respects Chief Justice M'Kean 
strongly resembled ; his model, as we obseryed, was 
Mansfield, but difference of temper spoiled the copy. 

Holt, it seems, always entertained the impression 
that the military of England — contrary to the "^"iews 
of Lord Mansfield — could only be legitimately em- 
ployed against a foreign enemy, and that tumults in 
the community were to be suppressed by the civil 
power alone. Upon being required, on one occasion, by 
the government, through a military ofScer, to counte- 
nance the soldiers in an attempt to prat down a danger- 
ous riot, "Return, sir," said his Lordship, "to those 
who sent you, and tell them that no officer of mine 
shall accompany soldiers ; the laws of the kingdom are 
not to be executed by the sword. This afiau* belongs 
to the civil authority, and soldiers have nothing to do 



THOMAS M'KEAiM. ' 343 

here." He then ordered his tip-staves and constables 
to follow him to the scene of outrage and tumult, 
where the populace, upon his assurance that, if they 
had suffered wrong, they should have full justice, 
peaceably dispersed.* This story is also considered 
somewhat apocryphal, but certain it is, that the same 
Chief Justice did, in his proper person, with the aid 
of his court attendants, disperse a riotous assembly at 
Holborn. This, however, we are told, was not so re- 
markable, as such had been the practice of the Chief 
Justices of the King's Bench, from the earhest times 
down to that period. 

During M'Kean's second term of office as governor of 
Pennsylvania — for he was thrice elected — a committee, 
consisting of Duane, Lieper, and others were appointed 
by a town meeting to wait upon liim, to inform him 
that the democracy of Philadelphia were utterly op- 
posed to the nomination of William Tilghman as chief 
justice of Pennsylvania. The committee were intro- 
duced into the executive apartments, and the governor 
received them in his civil but reserved and aristocratic 
manner, treating them simply as his constituents ; 
when, however, they announced themselves as the 
representatives from tlie democratic party — the sove- 
reign people — he bowed most profoundly, and inquired 
of them what the great democracy of Pliiladelphia 

* Lord Campbell's life of Chief Justice Holt. 



344 THE FORUM. 

required of him. They proceeded, and stated the 
purposes of theu' delegation, and in pretty plain terms 
gave him to understand that the appointment of Mr. 
Tilghman would never meet the approval of the demo- 
cratic party. " Indeed !" said the governor. " Inform 
your constituents that I bow with submission to the 
will of the great democracy of Philadelphia ; but by 
Q — d, William Tilghman sMIl he chief justice of Penn- 
sylvania." 

The governor having vetoed what was deemed an 
important biU, passed by the legislature, a committee of 
three of that body was appointed to wait upon his excel- 
lency, to remonstrate with him, and to urge the recon- 
sideration of the veto. He received them with his 
accustomed dignified politeness, and after they had 
explained the object of their mission, apparently 
without noticing their communication, he deliberately 
took out his watch, and handing it to the chakman, 
said, " Pray, Sir, look at my watch ; she has been out 
of order for some time ; will you be pleased to put her 
to rights." " Sir," replied the chan'man, with some 
surprise, " I am no watchmaker ; I am a carpenter." 
The watch was then handed to the other members of 
the committee, both of whom declined, one being a cur- 
rier, the other a bricklayer. " WeU," said the governor, 
" this is truly strange ! Any watchmaker's apprentice 
can repair that watch ; it is a simple piece of mechan- 
ism, and yet you can't do it ! The law, gentlemen, is a 



THOMAS M'KE AN. , 345 

science of great difficulty and endless complication ; it 
requires a life time to understand it. I liave bestowed 
a quarter of a century upon it; yet you, who can't 
mend this little watch, become Icmyers all at once, and 
presume to instruct me in my duty." Of course, the 
committee vanished, and left the governor " alone in 
his glory." 

In 1806, when the House of Representatives of the 
State of Pennsylvania sent an address to Governor 
M'Kean, requesting the removal of Judge Brecken- 
ridge, the request was utterly refused. The committee 
attempted to remonstrate with him, stating that the 
term " may remove," in the constitution, meant mud 
remove. To which he promptly answered, that he 
would have them to know, that may sometimes meant 
wont. 

He would at times, though very rarely, lay aside 
the rigidity and sternness of his manner, and adopt a 
familiarity and cordiality that, in the general, were 
foreign from his disposition. A very worthy man* 
applied to him for a commission as justice of the peace, 
but stated very frankly that he had no certificates or 
backers. "Never mind," said the governor, "I require 
none ; and if any one should ask you how you got the 
appointment, tell him Thomas M'Kean recommended 
you, and the governor appointed you," and yet, even 

* John Goodman, of the Northern Liberties. 
VOL. I. — 23 



346 THE FORTJM. 

in this, and in similar instances of kindness, it will be 
perceived, that he exulted more in his own j)ower, thsin 
in the ienefit conferred upon others. 

On the twenty-sixth of September, 1781, he received 
from Princeton college, the diploma of Doctor of Laws, 
and the next year a similar honor from Dartmouth, 
New Hampshire. On the thirty-first of October, 
1785, he was elected a member of the Cincinnati. He 
also became a trustee of the University of Pennsyl- 
vania, and the patron of various political, and philan- 
thropic societies. He was twice married; first in 
1762, to Mary, the eldest daughter of Joseph Borden, 
of Bordentown, New Jersey, who died in 1773 ; se- 
condly, in September, 1774, to Sarah Armitage, of 
New Castle, Delaware. By the first wife he had two 
sons and four daughters, and by the second, five chil- 
dren, none of whom are now living ; and most of whom 
were survived by their illustrious father. 

At length, on the twenty-fourth of June, 1817, at 
the age of eighty-three, he sunk, like "mellowed fruit, 
to the earth." He died — and all that was mortal of 
him, was deposited in the burial-ground of the first 
Presbyterian church, in Market street above Second, 
in the city of Philadelphia. 

Governor M'Kean was a tall, stately, and — notwith- 
standing his great age — erect person. He usually wore 
a cocked hat, carried a gold-headed cane, and walked, 
even to the close of his life, though with a somewhat 



THOMAS M'KEAN. 34^ 

tottering step, with great apparent dignity and pride. 
His courtesy always displayed as much selfishness as 
suavity, he generally moved through the streets alone, 
and apparently much absorbed in his reflections. As is 
known, he was one of the signers of the Declaration of 
Independence, and if we may use the phrase — which we 
do in all respect and kindness — he was an actual imper- 
sonation, a practical living, walking emblem and me- 
mento of that Declaration. Apparently, the two proud- 
est men the city ever beheld — and to be sure they had 
much to be proud of — were our present venerable sub- 
ject, and his son-in-law, the Marquis de CasaYrujo, the 
ambassador of Spain, the father of the lamented Duke 
of Soto Major, whose melancholy and untimely death 
recently occurred at Madrid.* 

In contemplating the career of Governor, or Chief 
Justice M'Kean, (who, apart from scanty instruction 
received in early life, from the Reverend Francis Al- 
lison, his preceptor, had but few opportunities of 
obtaining literary instruction,) we are astonished at 
the force and expansion of his native genius, even 
unaided, as it was, by the advantages of a liberal 

* This amiable and aecomplished nobleman was born in Philadelphia, 
and upon his father's death, succeeded to the title of Marquis. He after- 
wards married the Duchess of Soto Major, and, under the laws of Spain, 
(differing from those of England,) assumed his wife's title. He was 
ambassador from Spain to England and to France, and ranked highly 
as an honorable and skilful diplomatist. 



348 THE FORUM. 

education. In this respect lie strongly resembled 
William Lewis. In mere intellectual power, they were 
equal, if not superior, to most of their cotemporaries ; 
but having unassisted, as it were, elevated themselves 
upon the ladder of ambition, above the masses, with a 
natural, but not commendable spirit, they held the cour- 
tesies and amenities of life as matters of comparative in- 
difference. They became reserved, haughty, and some- 
times overbearing ; and from being in advance of those 
who had enjoyed greater advantages or opportunities, 
they assumed superiority over those who, with equal 
native capacity, had been benefited and improved by 
all the charms, embellishments, and appliances of a 
refined education. 

Competition and equality subdue pride. They impart 
to us the salutary lesson, that talents, after all, are not 
so unequally distributed as may by some be supposed ; 
that with equal chances and equal labour men attain 
equal eminence, when their efforts are judiciously di- 
rected; if not in the same departments of life, yet 
in others of equal utility. This conviction should 
teach us all, becoming modesty and humility. 

Vanity may sometimes attend upon true gTeat- 
ness, but pride — never. Vanity is often the stimu- 
lus to great achievements ; pride is only then: sub- 
stitute. Pride walks alone through life in assumed 
self-dependence ; vanity lives and breathes only in 
a crowd. Pride appeals from others to itself; vanity 



THOMAS M'KEAN. 349 

appeals from itself to others. There is little in this 
life to encourage either, but the latter is the less 
exceptionable of the two.* But suggesting, rather 
than pursuing these reflections, pass we now to Bush- 
rod Washington, an Associate Justice of the Supreme 
Court of the United States ; a model judge, the idol 
of the bar, and the glory of the American bench. 

* As a general thing, it has been well remarked — though certainly not 
applicable in the present instance — that " your would-be dignified men 
are great blockheads ; they carry themselves loftily and keep at a distance, 
that their ignorance may not be detected. Men are like ships, the more 
they contain, the lower they carry their head." There are, to be sure, 
many illustrious instances to the contrary ; Lord Chatham, Lord Erskine, 
and Mr. Pinckney — but the display for which they were remarkable, arose 
rather from inordinate vanity, than pride. This was also the besetting 
sin of Hortensius. He was so devoted to dress and to theatrical gesticu- 
lation, that he was accused of having derived a fondness for both from a 
close study of Roscius, at that time the most distinguished of all the 
dramatic performers in Rome. But, upon the contrary, it turned out 
upon investigation, that, instead of he borrowing from Roscius, the latter 
regularly attended the forum, for the purpose of imitating Hortensius ! 



CHAPTEU V. 



BUSHKOB WASHINGTON. 



Washington — the proudest and brightest name in 
the annals of our country — was preceded by James 
Wilson, James Iredell, William Patterson, and Samuel 
Chase, in the order in wliich they are named, as Jus- 
tices of the Supreme Court of the United States ; all 
of whom, separately, presided from time to time (in the 
spring and fall of the year,) in the United States Cir- 
cuit Courts for the district of Pennsylvania. A brief 
notice of those eminent men, is all that is requii'ed, as 
an introduction to their more eminent successor. 

Judge Wilson, for many years prior to his appoint- 
ment, had been a powerful advocate at the Philadel- 
phia bar ; but his reputation on the bench, as we are 
told, was inferior to his fame as an advocate. He held 
his judicial post, however, from the twenty-ninth of 



BUSHROD "WASHINGTON. 35| 

September, 1789, until 1798, wlien death relieved him 
from his official duties. 

Judge Iredell was appointed in 1790, and occupied 
the bench until 1799, when he died, universally es- 
teemed and regretted. William Patterson, of New 
Jersey, is described as an excellent lawyer, a man of 
great moral and mental worth, and of extraordinary 
judicial patience and propriety. He was appointed in 
1793, and died in 1806. Samuel Chase, of Maryland, 
one of the signers of the Declaration of Independence, 
a man of ripe legal learning, but of a lofty and most 
despotic spirit, became an associate justice in the year 
1796. 

Judge Chase appears never to have been in much 
favor with the FMladeljphia har, although its mem- 
bers aU united in ascribing to him abilities of no 
common order. We have spoken of the Philadelphia 
bar, which may be said at that period, to have vir- 
tually embraced the bar of the whole country. Phila- 
delphia was then, let it be remembered, the centre 
of the Union and the seat of the general govern- 
ment; aU the rays of society — science and intelli- 
gence — centred upon her; she was the very cyno- 
sure of the nation. Yet, with aU the competition of 
learning and accomphshment that this condition of 
things naturally involved, the legal profession here, 
always maintained its supremacy; and the glory then 
acquired — even now, in its departing beams, stUl fur- 



352 THE FORUM. 

nishes some faint idea of its meridian briglitness and 
fulness. 

He must, indeed, have been a proud man, though 
adorned with high official honors, that even in fancy 
could elevate himself ahove such a bar as then graced 
our courts ; and he must have been a bold and pre- 
sumptuous man, that could hope to overawe it. Judge 
Chase attempted lotli, and failed in hoth; and by over- 
reaching his legitimate rights, diminished his power. 
An infant might win such a bar, but a giant could not 
control it. They stood as one man, with as firm and as 
pure a purpose as animated their ancestors, who shook 
off the yoke of foreign oppression and bartered blood 
for liberty. If the bar should always thus prove faith- 
ful to themselves, no court could ever encroach upon 
their privileges with impunity. 

From the moment Judge Chase took his seat, it was 
obvious, that he had either mistaken himself or those 
around him. Civility was an essential integral part of 
the profession; it was extended to all — it was expected 
from all. It may weU be conceived, therefore, what 
was the surprise experienced by one of the mildest, 
most pious, and most exemplary men of the time to 
which we refer, and to whose recollection we owe the 
anecdote — upon entering the Circuit Court room where 
Judge Chase presided — to be made a witness to the 
following discreditable occurrence. 

An important case was before the Court, in wliich a 



BUSHROD WASHINGTON. ' 353 

learned gentleman by the name of Samuel Leake, from 
Trenton, (in an adjoining State,) was engaged. Mr. 
Leake was remarkable, generally, for the number of 
authorities to which he referred, and upon this occasion 
he had brought a considerable portion of his library 
into court, and was arranging the books upon the table 
at the time the judge took his seat; when the following 
laconic colloquy took place : — 

Judge Chase. — " What have you got there, sir V 

Leake. — " My books, sir." 

CAase.—" What for?" 

Leake. — " To cite my authorities." 

Chase.—'' To whom ?" 

Leake. — " To your Honor." 

Chase.—'' I'll be d— d if you do." 

Not a great while after this came on the indictment 
of Fries, for treason against the United States. Judge 
Chase and his associate. Judge Peters, held the court; 
Mr. Rawle was the district-attorney, Mr. Lewis and Mr. 
Dallas represented the prisoner. Immediately upon the 
jury being sworn, contrary to all usage, and all propriety, 
without having heard any portion of the case, the judge 
submitted in writing, the law, as he intended to lay it 
down in his charge to the jury. Judge Peters, who knew 
the Philadelphia bar perfectly well, having told him — 
to use his own language — that " the bar would cer- 
tainly take the stud, if that course were attempted." 



3^^ THE FORUM. 

Nevertheless, Judge Chase handed down his opinion 
to Mr. Lewis, who refused to receive it, declaring, at 
the same time, that "his hand should never be contami- 
nated by touching a pre-judged opinion." This led to 
great embarrassment and difficulty, the judge persisted 
in his purpose, Mr. Lewis and Mr. Dallas withdrew 
from the defence, and Mr. Rawle, the districirattornej, 
was condemned, with great pain to himself, to prose- 
cute for an offence involving Hfe, when the prisoner 
was undefended. This trial, if it may be so called, 
resulted in a conviction, and finally led to the impeach- 
ment of Chase in 1805, before the Senate of the United 
States. All the proceedings are fully set forth in the re- 
port of the trial and impeachment, pubhshed at the time. 

The judge was acquitted, and Fries pardoned. 

With all these objections to Judge Chase, however, 
there is a feature in his hfe that at least shows he was 
a man of kind feehng, and perfectly sensible to the 
influence of gratitude. 

Shortly after the impeachment referred to before 
the Senate of the United States, in which Luther Mar- 
tin made one of his ablest speeches, he (Martin) was 
engaged in the Circuit Court of the United States for 
the District of Maryland. It was the infirmity of that 
great man, at least towards the latter part of liis pro- 
fessional life, to indulge ui an excess of drhikiug, which, 
while it impaired his faculties, rendered him somewhat 
irritable, and at times offensive in his deportment to- 



BUS II ROD WASHINGTON. 355 

wards the Court. Bearing in mind the great service 
he had rendered Justice Chase; while in his cups, he 
probably presumed upon it. However this may be, 
upon the occasion mentioned, he repeatedly treated 
the opinions of the judges with obvious disrespect, 
until at last he was given to understand that his con- 
duct could be tolerated no longer. This intimation had 
no effect, and finally the district judge drew out a 
formal commitment for contempt, and handed it to the 
circuit judge for signature. Judge Chase, as has been 
observed, was an able judge, and as arbitrary as he 
was able ; but when the paper was handed to hitn, 
gratefully remembering the service which he had re- 
ceived from Martin, after having taken the pen to sign 
the commitment, he impulsively threw it away, ex- 
claiming, " Whatever may be my duties as a judge, 
Samuel Chase can never sign a commitment against 
Luther Martin." 

But this distinguished judge was as bitter in his re- 
sentments as he was grateful for benefits ; and it was 
understood that he never forgave Moses Levy for the 
part taken by him in relation to the " impeachment ;" 
and his feehngs were manifested in the following 
way. WhUe Judge Chase sat in the Delaware district, 
Mr. Levy, being personally interested in a case before 
him, made an application to postpone the cause, filing 
his affidavit, in which he swore to certain matters of 
fact and law, that rendered the postponement neces- 



356 THE FORUM. 

sary. "Very well, Mr. Levy," said the judge, in a 
manner as cold and pointed as an icicle, "the case 
must of course be postponed ; and, indeed, the court is 
much indebted to Mr. Levy for his affidavit, for he has 
sworn to some points of law, of which, I confess, I 
have always had very considerable doubt." 

Judge Chase died the nineteenth of June, 1811, at 
the age of seventy — born in 1741. 

But we have dwelt — though briefly and cursorily — 
longer than we purposed upon the earlier members of 
the United States Circuit Court for the Third District. 
We come now to our especial subject. 



BUSHROD WASHINGTON, L.L.D., 

ASSOCIATE JUSTICE OF THE SUPREME COURT OF THE UNITED STATES. 
BORN, 1761 — DIED, 1S29. 

Perhaps the greatest Nisi Prius judge that the world 
has known, without even excepting Chief Justice Holt 
or Lord Mansfield, was the late Justice Washington. 
It was impossible to conceive of a better judicial man- 
ner ; and when to that is added great legal acquirement, 
great perspicuity and promptitude, great mildness, 
exemplary self-possession, and inflexible courage, all 



BUSHROD WASHINGTON. ' 357 

crowned hy an honesty of purpose that was never 
questioned ; he may be said, in the estimation of the 
bar and the entire country, to have stood among the 
judiciary, as par excellence, " The Judge." And yet, 
we have heard it remarked by a most eminent belles- 
lettre scholar, that Judge Washington's literary reading 
was so limited that it was questionable whether he 
even knew who was the author of Macbeth. Lord 
Tenterden, we are told, did not know the author of 
Hamlet. Lord Holt and Lord Kenyon were certainly 
not remarkable for classical attainments ; and there is 
no evidence on record of any distinguished judicial 
functionary, who was conspicuous for his knowledge 
of general literature. The law is a jealous mistress, 
and will bear no rivalry either from the Graces or the 
Muses, as Blackstone has shown. To know yoiu' own 
peculiar duties well, and to discharge them faithfuU}^, 
is infinitely better than by too many pursuits — too 
much diffusion — to waste or misdirect the powers of 
the mind. It is related of Dr. Par, that when a gen- 
tleman complained to him of having too many irons in 
the fire, that is, being too variously engaged, the 
learned pundit replied, " That is a great mistake ; put 
them all in, tongs, poker, and all." This may, in some 
rare instances, perhaps, answer pretty well ; but it not 
unfrequently happens, that those who adopt this philo- 
sophy, sooner or later burn their fingers. 

Judge Washington concentrated all his mind and 



358 THE FORUM. 

learning upon one great object — the faithful discharge 
of his official duties, and thereby avoided the annoyance 
and distraction, if he lost the distinction, of diversified 
learning. He was a classical scholar, of great early pro- 
mise, but was never elevated to office by his uncle, (the 
Father of his country,) who studiously avoided every 
imputation of undue partiality to his kinsmen. President 
Adams, however, upon succeeding to the post of Chief 
Magistrate of the Union, in the year 1798, conferred 
upon Bushrod Washington, still a young man, being 
only thirty-seven years old, the appointment of Asso- 
ciate Judge of the Supreme Court of the United States. 
This appointment, and that which speedily followed, 
the Chief Justiceship of John Marshall, were enough 
in themselves to secure a lastmg obligation of the 
country, to the appointing power. 

Upon Washington's appointment, he entered at once 
upon his duties, and continued to perform them with 
punctuality, fidehty, and distinguished ability, to the 
close of his valuable life, which occurred in the city of 
Philadelphia, on the twenty-sixth day of November, 
1829. 

The members of the Philadelphia bar, in commemo- 
ration of his worth, placed over the judgment seat, 
where he had so long presided, a marble tablet, the 
inscription upon which, was furnished by Joseph R. 
Ingersoll and Joseph Hopkinson, two of the most pro- 
minent and eloquent members of the bar. We must 



BUSHROD WASHINGTON. 359 

not withhold this two-fold tribute to the virtues of the 
departed, and the gratitude of the survivors. 

INSCRIPTION. 

This Tablet 

records the aflfectiou and respect of the members of the 

Philadelphia Bar, 

for 

BusHROD Washington, 

an Associate Justice of the Supreme Court of the United States ; 

alike distinguished for simplicity of manners 

and purity of heart ; 

fearless, dignified, and enlightened as a judge, 

no influence or interest could touch his integrity 

or bias his judgment ; 

a zealous Patriot and a pious Christian. 

He died at Philadelphia, on the 26th of November, a. D. 1829, 

leaving to his professional brethren a spotless fame, 

and to his country 

the learning, labor, and wisdom of a long judicial life. 

Judge Washington was a man of about five feet six 
inches high, with a finely-chiselled, feminine face, and of 
a slender and feeble frame, though not deficient in acti- 
vity. His eyes were black, his hair brown, tinged with 
gray ; his forehead expansive, and marked with thought, 
and his whole bearing indicating the most perfect mo- 
desty, gravity, and dignity. He rarely smiled, but his 
smile was as artless as that of an infant. He never 
held conversations upon the bench or in the court 



3g0 '^HE FORUM. 

room. The moment he entered the temple of justice, 
he was every uich a judge. 

During a trial he took but few notes, hut kept his eye 
fixed upon the witness and counsel. He never addressed 
the audience, nor seemed to know they were present. 
We never knew him to speak even to the crier, but once, 
and that was upon an occasion when the court room 
being very much crowded, the proceedings were some- 
what interrupted. The crier bellowed silence, over 
and over again, when the judge, turning towards him 

in the most composed and quiet way, said: "Mr. , 

it seems to me, that you make much more noise than 
you suppress, and if I should have occasion to speak 
again upon the subject, it will be to your successor." 
This rebuke at once restored matters to their propriety. 
But the tacitmmity of the Circuit Court judge had always 
been too common, to render the silence of Judge Wash- 
ington so remarkable ; for Judge Patterson is well re- 
membered to have tried a case that lasted seventeen 
days, and without ever asking a question. 

Before Judge Washmgton, no just cause could fail ; 
no artifice succeed, whatever might be the talent of its 
advocate. The judge had no partiahties, no prejudices, 
no sectional or party bias. The proudest man was awed, 
and the humblest man was sustained before him. He 
encouraged the weak and repressed the powerful. To 
the young and the inexperienced members of the bar, 
he was always attentive and indulgent ; he listened to 



BUSHROD WASHINGTON. ' 361 

them with great patience and with marked courtesy. 
As an instance of this, I recollect, shortly after I was 
admitted to the bar, having been concerned in the case 
of Zehn & Rhoads v. Governor Snyder, Mr. Binney 
and Mr. Rawle bemg my colleagues, and Messrs. Bel- 
las, Chauncey and Kittera, representing the defendant. 
It was an important ejectment for a large tract of 
land. As junior counsel, it became my duty to open 
it, which was done ; but upon turning round to call 
the witnesses, who were present when I commenced 
my speech, to my astonishment they had all disap- 
. peared ; they were necessary to prove the possession 
of the defendant. Here was a dilemma, as I thought, 
— perhaps erroneously — produced by the management 
of the adverse party. I at once stated the difficulty 
to the Court ; Judge Washington, who appeared to un- 
derstand it as I did, replied in the kindest way, " We 
will wait a moment, sir, perhaps they will return." 
After waiting about ten minutes, which seemed to me 
like an hour, he turned towards me, and said : " I 
believe the case must go on." In my extremity I 
called upon Mr. Bellas, one of the opposite coimsel, 
who, living in the vicuiity of the locus in quo, I pre- 
sumed must be acquainted with the subject. The 
counsel objected to being sworn, on the ground that 
he was not bound to disclose what might injuriously 
affect his client. " Wliy not ?" replied the judge, with 
more than usual fire in his eye, "you are not asked to 
VOL. I. — 24 



362 THE FORUM. 

state anything confided to you by your client; but the 
relation of client and counsel, does not impart to the 
counsel any exemption from the obligation to testify 
to what he independently knows ; if you know, there- 
fore, you must state who was in possession of the 
land. Were it otherwise, when a member of the bar 
has knowledge of a fact important for the case of 
one party, it would only be requisite for the other 
party to employ him, and thereby defeat the purposes 
of justice — let him be sworn." 

There was one occurrence, and only one, that is 
known, indicating undue excitement on the part of the 
judge. The Honorable Richard Peters was the Dis- 
trict Judge of the United States, for Pennsylvania ; he 
was a man of great honesty of purpose and infinite 
wit, but certainly not a profound lawyer; and as often 
happens, with those of confined views, he had rather 
loose notions of equity; instead of considering it, as 
Blackstone does, as that rule, whereby the defects of 
the law arising from its universahty were remedied, 
he looked upon it as a matter of abstract justice. With 
these opinions, he not unfrequently somewhat crossed 
Judge Washington in his views, and no doubt this 
course, long continued, rendered the Circuit Judge unu- 
sually sensitive. Upon one occasion, when a case was 
presented to the Court, in which the construction of 
the law bore with some hardsliip upon the defendant, 
and Judge Washington decided accordingly. Judge 



BUSHROD WASHINGTON. 3Q3 

Peters was overheard to say, " That may be law, but 
I am sure it is not equity." " Equity !" replied his 
learned brother, " What's equity ? d — n equity." 

During the argument of the case of Sinnickson's 
Will, before the Circuit Court at Trenton, New Jersey, 
in the year 1822, although but shortly after my admis- 
sion, I attended the court regularly, and dined with 
the older and more distinguished members of the bar, 
at Bispham's hotel; among those at our table, were 
Richard Stockton, William Griffith, and other eminent 
men, and to my surprise. Judge Washington, hunself, 
formed one of the company, which was certauily con- 
trary to liis usage in any other part of his circuit. 
Upon these occasions he showed great discretion, mo- 
desty and cheerfulness, and at least, furnished one in- 
stance of his courage and humanity, which should never 
be forgotten, and which shall be related in its order. 

Mr. Stockton, who was a man of great intellectual 
power, and whose frankness sometimes overstepped 
some of the modern refinements, generally took the 
lead in conversation. Washington started no sub- 
jects, but simply answered, when appealed to. The 
first topic was the arrival of the Spanish ambassa- 
dor, Don Vivos. "1 am informed," said S., "that he 
cannot speak or write a word of English. How is 
that ?" " I don't know," said the Judge, "' but if that 
is the case, he is in an awkward condition, for Mr. 
Adams, (the Secretary of State,) will not allow him 



gg^ THE FORUM. 

much time to learn the language." From this, they 
passed to Mr. Middleton's Russian mission; the sala- 
ries and private fortunes of ministers, &c., and lastly, 
to the United States Supreme Court and the limi- 
tation of the judicial tenure in New York. " I have 
great admiration," said Stockton, "for Chancellor Kent; 
he is undoubtedly one of the ablest men of our time 
— what an absurdity to displace him by legislative 
enactment, and thereby deprive the State and the 
country of the benefits of his great legal learning and 
experience, at the very period when they would be 
most useful. Now, if Chief Justice Marshall should 
die, which heaven forbid, what a reproach would it not 
be to New York, if Chancellor Kent should be ap- 
pointed to his place ; nothing would rejoice me more. 
I tremble at the thought of a mere political appoint- 
ment to the Supreme Court, the anchor of our hopes." 
This struck me as a rough remark, as addressed to 
Judge Washington, who — at least at Nisi Prius — was 
equal to either of them as a judge; but he simply 
smiled an approval of the sentiment, and the theme was 
changed. Mr. Stockton again addressed him, sajdng, 
" I have known you and Griffith here, man and boy, 
for over thirty years, and there are about half a dozen 
men whom I should like to see together with you, at 
my table — yourselves, of course ; Sitgreaves, of Easton : 
Gaston, of North Carolina ; and Dessaussui'e, of South 
Carolina." The coUoquists then joined m discussing 



BUSHROD WASHINGTON. 3g5 

the position and abilities of the persons referred to ; 
when, passing from that subject, Mr. Stockton inquired, 
" Have you seen the account of the melancholy po- 
sition in which Governor Desha, of Kentucky, has 
been placed by the crime of his son ?" " It is a sad 
affair," said the Judge. " But," rejoined Stockton, "the 
worst of it is, that the son, having been convicted, the 
Governor, his father, must now decide between signing 
the death-warrant or a pardon." "And that, you con- 
sider a difficulty ?" said the Judge. " Certainly," re- 
plied the interlocutor ; " Why, I would like to know, 
now, what you, an upright, impartial, and inflexible 
judge, would do in such a case?" "Z>o.'" was the 
reply ; " Do you doubt, Mr. Stockton, what I would 
do ?" his eye sparkling, and his little figure expanding 
by the side of his gigantic friend ; " why, sir, I would 
PARDON HIM AT ONCE ; the time has long gone by, when 
it was deemed either natural or honorable to play the 
Roman father." 

Such were the sentiments of a man who never was 
a father, but who spoke from his own magnanimous 
and heroic feelings. It was the same generous emo- 
tion that swayed his immortal uncle, in his sympa- 
thies for the unhappy Andre; the merciful effect of 
which sympathies nothing could have prevented, but 
the imperative demands of devoted patriotism. 

It is not my province to invade the sanctity of 
domestic life, even to witness its vii'tues 5 but I cannot 



3Q6 THE FORUM. 

but notice the tenderness and self-sacriiicmg spirit of 
Judge Washington, as manifested towards his wife. 

Mrs. Washington Avas an accompKshed woman, but 
of a highly excitable and nervous temperament. She 
never was happy in the absence of her husband, and, 
therefore, with the exception of the time when he was 
compelled to be in court, his hours were invariably 
spent with her. For some years after his appointment, 
say until 1810, before her infirmity became confirmed, 
he entered into social and convivial parties, and shared 
fully in their enjoyments ; but the moment he found 
that even his temporary absence disturbed his wife, he 
abandoned those scenes entirely, and. from thenceforth, 
apart from his imperative official obhgation, he seemed 
to live alone for her. The moment the clock struck 
three, the hour of adjournment, he passed immediately 
to his lodgings, and remained there until next morning 
at ten o'clock, the hour of meeting. During the inter- 
vals of official labor he read to her, conversed with 
her, and consoled her in all her actual or imaginary 
sufferings, and, in short, seemed to consider it a matter 
of happiness, as well as duty, to contribute to the 
gratification of all her caprices. 

Even towards the close of life, when the facilities of 
travel were much improved, Mrs. Washington, who had 
a great terror of railroads or steamboats, always insisted 
upon accompanying her husband upon his circuit. The 
consequence was, that he was condemned twice a vear 



BUSH ROD WASHINGTON. ' 357 

to the tedious journey from Mount Vernon to Philadel- 
phia, Trenton, and Pittsburg, in his own carriage and 
with his own servants, a matter of serious delay and in- 
convenience. Still he never complained, and if he were 
to speak of it in her presence, it was rather in a spor- 
tive than repining spirit. She became thus so almost 
identified with him, that she survived him but twenty- 
four hours. He died on the 26th of November, 1829, and 
his wife died suddenly next day, on the road near Phila- 
delphia, while following his remains to Mount Vernon. 

The conjugal relations of Chief Justice Marshall 
somewhat resembled those of Judge Washington, and 
their friendship and affection towards the aged and 
excellent partners of their bosoms were alike. Mrs. 
Marshall was also subject to serious nervous affec- 
tions, which at times rendered her particularly irri- 
table and whimsical, and taxed the forbearance and 
patience of her husband to the utmost. This great 
and good man, however, humored her in every possible 
way, and soothed her with the most constant and in- 
exhaustible tenderness. 

Judge Marshall resided near the Hill, in Richmond, 
and it so happened, that a miller resided in the same 
place above him. The miller had a mill some dis- 
tance below the house of the Chief Justice, which he 
visited every morning before day-break, upon horse- 
back, making no inconsiderable noise, with the clatter- 
ing of his horse along the pavement. Mrs. Marshall 



368 THE FORUM. 

declared that this disturbed her morning rest, and 
would be the death of her, and with an overrated 
notion of the power of a Chief Justice, she called 
ujDon her husband to put an end to this annoyance, 
and to punish its author. " I have no power to pun- 
ish," said this admirable man, "and perhaps I have 
not even the right to comj^lain of a man in the regular 
pursuit of Ms own calling, but I will see what 'can be 
done." Accordingly, he called the next day upon the 
miller, praised his horse — asked if he would sell him — 
the price, &c. The price was a high one, but he be- 
came the purchaser ; yet before closing the purchase 
he said to the vendor, that he desired to make it 
part of the contract that — as he (the miller,) might 
get another horse — in future, he would visit his mill 
by the back road, and not pass by way of the street. 
Tliis was agreed upon, and all parties were satisfied. 

Judge Washington was as brave as he was modest, 
and as prudent as his uncle. Of himself, apart from 
his being affined to the greatest man that " ever lived 
in the tide of time," he would have been an object of 
respect and veneration ; but still it cannot be denied, 
that the beloved name of Washington cast a halo around 
his brows, and while at the same time that 'it gave an 
earnest of a godhke nature, exercised an influence 
over the public opinion, too sacred to be lightly disre- 
garded or invaded. He w^ould have given glory to 
any name — but that name around which the hearts of 



BUSHROD WASHINGTON. ' ggg 

a nation clung, was sufficient to reflect and impart 
additional glory, even upon the rarest and highest 
worldly distinctions. Added to this, known as it was, 
that the judge was the favorite relative of a man, who 
never mis]3laced his favors or affections, it is scarcely 
possible to conceive of any prestiges or auspices more 
favorable than those which he enjoyed. How he jus- 
tified and fulfilled them all, all who knew him must 
know ; and one who knew him well, as a lawyer, and 
who was himself an eminent judge, has justly portrayed 
his character in the following eloquent and graceful tri- 
bute to his memory. It is so much better than any 
thing we could say, as to require no apology for its 
introduction ; it would rather require an apology for 
its omission. 

Judge Plopkinson thus speaks of him, in a discourse 
dehvered a short time after his decease : — 



" Few, very few men, who have been distinguished on the judg- 
ment seat of the law, have possessed higher qualifications, natural 
and acquired, for the station, than Judge Washington. And this is 
equally true, whether we look to the illustrious individuals who have 
graced the Courts of the United States, or extend the view to the 
country from which so much of our judicial knowledge has been 
derived. He was wise, as weU as learned j sagacious and searching 
in the pursuit and discovery of truth, and faithftd to it beyond the 
touch of corruption, or the difiidence of fear : he was cautious, con- 
siderate, and slow in forming a judgment, and steady, but not obsti- 
nate, in his adherence to it. No man was more wiUing to listen to 



g'^Q THE FORUM. 

an argument against his opinion ; to receive it witli candor, or to 
yield to it with more manliness, if it convinced him of an error. He 
was too honest and too proud, to surrender himself to the undue 
influence of any man, the menaces of any power, or the seductions 
of any interest; but he was as tractable as humility, to the force of 
truth ; as obedient as fihal duty, to the voice of reason. "When he 
gave up an opinion, he did it not grudgingly, or with reluctant quali- 
fications and saving explanations; it was abandoned at once, and he 
rejoiced more than any one, at his escape from it. It is only a mind 
conscious of its strength, and governed by the highest principles of 
integrity, that can make such sacrifices, not only without any feeling 
of humiliation, but with unaffected satisfaction." 

During a trial, in which, eminent counsel were con- 
cerned — the case of the Atlantic — after the charge of 
the learned Judge, in placing certain documents before 
the jury, a diiference arose between the oj)posing 
counsel, which led to expressions of some harshness, 
and appeared to tend to something like an open rup- 
ture. For a moment. Judge Washington supposing it 
would pass over, seemed to take no notice of it, but 
as. the altercation increased in violence, he placidly 
and mildly turned to the counsel and said, in a sub- 
dued voice : " Gentlemen, Philadelphia is celebrated 
throughout the Union, for the talents and courtesy of 
its bar; I trust, nay, I know, that you would be unwil- 
ling to be considered exceptions to that character." 
All difficulty was at once over, and the Court pursued 
its business as if nothing had occurred. 



BUS II ROD WASHINGTON. 371 

One morning at the Circuit Court, (at that time 
holding its session in Independence Hall,) in the 
midst of an important cause, a gentleman of the first 
eminence at the bar, rushed, rather than tvalJced, into 
court, and in a loud voice appealed to Judge Wash- 
mgton and all the bar and suitors, to accompany him 
at once to the Centre Square, where he desired to 
address them upon the attempted overthrow of the 
American Repubhc, by the influence of foreign govern- 
ments and domestic traitors, through their emissaries 
amongst us. He spoke for a few minutes, and then 
seizing his hat, with intense excitement rushed into the 
street. He was a great favorite with the bench and 
the bar ; every one of his legal brethren seemed utterly 
appalled. The only individual unmoved was Wash- 
ington, he comprehended the whole matter at a glance ; 
he listened to the speaker with his customary atten- 
tion, turned to his associate apparently to consult, as 
though the address were nothing unusual ; and upon 
his departure simply looking to the bar, directed the 
case — which was upon trial, and which had been thus 
unhappily interrupted — to proceed, as though nothing 
extraordinary had happened. 

During the trial of Lieutenant Hand, of the United 
States Navy, for an attack upon the house of M. Dash- 
koff, the Rjissian minister, several foreign ambassadors 
were present; some of them as witnesses. Among 
them was Don Onis, the minister of Spain. At his 



372 THE FORUM. 

request; Mr. Alexander James Dallas, at ttat time 
District-attorney for the United States, mentioned 
jjubliclj to the Judge, that Don Onis was in attend- 
ance, but not in compliance with a subpoena that had 
been issued. " It is well," replied the Judge ; " since 
he is here, Mr. Dallas, it is scarcely worth while, by 
inquiring lioiv, to agitate a national question — let the 
case proceed." 

In a cause of great magnitude, in which the law 
was somewhat counter to the prejudice or sympathy 
of the case, the court laid down the legal principles 
boldly and conclusively, but after being out a short 
time, the jury gave a verdict directly against the 
charge. Mr. Chauncey rose to move for a rule for a new 
trial. "Take your rule," said the judge; "but aU 
argument is unnecessary. I set aside the verdict." 

But, while he was thus resolute in regard to the 
law, only show him that he had stated a fact too 
strongly for one party or the other, or had omitted 
any portion of the evidence that was essential to a 
just view of the case, and he was just as prompt to 
afford relief or redress — holding it, in the language of 
Lord Mansfield, to be more magnanimous to retract 
when wrong, than to persist in error. 

When he delivered a charge, it was not in the form 
of a written opinion, but of a speech, with his eye fixed 
upon the jury. His language was simple. He covered 
every topic that belonged to him as a judge, and 



BUS II ROD WASHINGTON. ' 373 

avoided everything like encroachments upon the just 
privileges of the jury. Perhaps he was the only judge 
whose integrity was never doubted by any man ;. and 
the only judge who, in the entire consciousness of his 
own unswerving rectitude, would not have regarded 
the doubts or the reproaches of the whole world. 

In laying down the law, or in the explanations of 
its technical terms, he was unequalled. I give but a 
single instance of the latter, as instar omnes. In the 
case of Murray v. Dupont, 3 Washington C. Court 
Reports, page 37, which was an action for malicious 
prosecution, in which the probable cause was as usual 
the turning pomt, he gives, in a few words, a defini- 
tion wliich no words can improve. " Probable cause," 
says the judge, " is a reasonable ground of suspicion, 
supported by circumstances sufficiently strong in them- 
selves, to warrant a cautious man in the belief, that 
the person accused is guilty, of the offence with which 
he stands charged." 

His courage was equal to his justice. Unlike those 
judges who talk like Caesar, while they tremble in 
their shoes, Washington did not seem to be sensible 
to fear, yet he was the last person to say so. He 
never spoke of fear, because he never knew it ; and 
courage, so far from being a matter of boast, was, with 
him, but another word for duty. Yet with aU these 
great qualities, he was so modest and unpretending, 
that the encomium passed by Governor Dinwiddle 



gy^ , THE FORUM. 

upon General Washington, in his youth, " Your mo- 
desty is only equalled by your merit," was equally 
applicable to his nephew. His whole life was a prac- 
tical exemplification of his lofty moral feehug ; and it 
would seem, therefore, to be unnecessary to invoke 
special instances of the humility and grandeur — mode- 
ration and magnanimity of his character. But there 
is one case — a perilous case — in which the qualities 
to which we have referred were eminently displayed. 
We refer to the case of the United States v. Michael 
Bright,* with a brief notice of which w^e shall conclude 
this hasty and scanty memoir. 

" Durino- the war of our revolution, Gideon Olmstead and others, 
having fallen into the hands of the enemy, were put on hoard of a 
British sloop, as prisoners of war, to be conducted to New York. 
During the passage, Olmstead and his companions rose on the British 
crew, took the vessel, and steered for a port in the United States. 
When within five miles of the port, a brig belonging to the State of 
Pennsylvania, came up with them and captured the sloop as a prize. 
She was brought to Philadelphia, and there libelled in the Court of 
Admiralty of the State. Olmstead and his associates filed their 
claim, and a judgment was rendered, giving one-fourth of the prize 
to them, and the remainder to the brig, that is, to the State of Penn- 
sylvania, her owner. Olmstead appealed to the Court of Appeals, 
established by Congress, where the sentence of the Couii of Admi- 
ralty was reversed, and the whole prize decreed to Olmstead ; and 

* The statement of this case is chiefly taken from Judge Hopkinson's 
Eulogy upon Washington. 



BUSHROD WASHINGTON. ' 375 

process was issued, directing the marshal to sell the vessel and cargo, 
and pay the proceeds accordingly. 

" The Judge of the Court of Admiralty delivered to David Ritten- 
house, then Treasurer of the State, the sum to which the State was 
entitled by the judgment of that Court, but which by the decree of 
reversal belonged to Olmstead. This money, in the form of certifi- 
cates, was in the possession of Mr. Rittenhouse at the time of his 
death, and then came into the hands of his daughters, as his repre- 
sentatives. The property was in this situation when Olmstead filed 
his libel in the District Court of the United States, then established 
under the liew constitution, praying for the execution of the decree 
of the Court of Appeals. A decree was given by the District Court, 
according to the prayer of the libel. This was in January, 1803. 
Thus far the State of Pennsylvania had made no movement to assert 
her claim ; but it was now necessary for her either to surrender her 
pretensions to this money, or to come forward and defend her citi- 
zens, who were holding it only for her use, and in doing so were 
exposed to the whole power of the federal judiciary. Accordingly, 
on the second of iVpril, 1803, an act was passed by the legislature 
of Pennsylvania, requiring the representatives of Mr. Rittenhouse to 
pay the money into the State Treasury, and directing a suit against 
them should they refuse. The governor of the State was also re- 
quired to protect the just rights of the State, by any further mea- 
sures he might deem necessary ; and also to protect the persons and 
property of the ladies from any process which might issue out of the 
federal court, in consequence of their obedience to this requisition. 
The act of assembly declared the exercise of jurisdiction by the 
Court of Appeals was illegally usurped, in contradiction to the just 
rights of Pennsylvania; and that the decree of reversal was null 
and void ; so of the decree of the District Court. Pause for a mo- 
ment to observe the awful positions in which these two sovereignties 
— that of the United States and that of Pennsylvania — are now 



g-j^g THE FORUM. 

placed. The United States were bound to support, witli their whole 
force, the execution of the judgment of their court ; and the governor 
of Pennsylvania was ordered by its legislature to resist the execution 
of that judgment with the whole force of the State. We tremble 
even now to look back at the precipice on which we stood. A false 
step on either side might have been ruin to both. Nothing but the 
most calm and consummate prudence, the most disinterested and 
magnanimous patriotism, could have brought us safely through this 
mortal crisis. 

" The District Court of the United States hesitated to proceed. 
The question was one of great delicacy ; the anticipated conflict ter- 
rible in the extreme. The process was suspended, that the case 
might be submitted to the Supreme Court; which, after a hearing, 
stood firmly to the constitution and the law, and commanded the 
District Judge to issue the process required. It was issued. With 
what an agonizing anxiety the result was awaited. Was a civil war 
to tear the entrails of the State ? and citizen to meet citizen in a 
deadly strife 1 Was our happy and prosperous career doomed to 
be so short ? Was this glorious Union to dissolve in blood, after a 
few years, which had proved its unparalleled excellence; had 
poured, plenteously, bounties upon our land ; had raised us from 
weakness, poverty, and obscurity, to the power and dignity of a 
great nation : which had given liberty, security, and wealth to a 
virtuous and industrious people ? was all to be shattered and lost in 
an unnatural conflict ? The process was issued ; and the officer of 
the court had no choice but to execute it ; and to compel obedience 
to it by the means given to him by the law. General IMichael 
Bright, commanding a brigade of the mUitia of Pennsylvania, re- 
ceived orders from the Governor immediately to have in readiness 
such a portion of the militia under his command as might be neces- 
sary to execute the orders, and to employ them to protect and de- 
fend the persons and property of the representatives of Mr. Kitten- 



BUSHROD WASHINGTON. 377 

house from and against any process founded on the decree of the 
District Court of the United States. A guard was accordingly 
placed by General Bright at the houses of these ladies ; and he, 
with the other defendants in the indictment, opposed, with force, the 
efforts of the marshal to serve the writ issued to him. The process, 
however, was served; and the State relieved the ladies, not by 
waging war upon the United States, but by paying the money ac- 
cording to the judgment of the court. This is enough of the history 
of this interesting case for our present object. It was for this re- 
sistance to the process of a Court of the United States, that G-eneral 
Bright, and others of his party, were indicted, and brought to trial 
before Judges Washington and Peters, holding a Circuit Court of 
the United States." 



In the course of the trial, and in deciding the various 
questions of law which arose in it, the extraordinary 
judicial qualifications of our Judge were shown in full 
relief His learning, his patient hearing, his clear and 
discriminating sagacity ; and above all, his unhesitating 
fearlessness, were all conspicuous. No judge was ever 
better entitled to exclaim, '^ Fiat justitia ; ruat ccelum" 

This cause lasted several weeks, during all which time 
there was the greatest popular agitation. Rumors, ter- 
rors, and threats of every kind, were put into cir- 
culation. The State-right's men affected to hold the 
power of the general government in contempt, and the 
authority of the Court in derision. It was publicly 
proclaimed, that Judge Washington would never dare 
to charge against the defendants; or to pronounce sen- 

VOL. I. — 25 



gijg THE FORUM. 

tence against them, if they were convicted. But the 
people did not know him, they were incapable of appre- 
ciating his rare moral and judicial qualities. He was 
too intrepid to he hullied — and he did charge decidedly 
against the defendants ; they were convicted, and he 
SENTENCED them. There is one circumstance connected 
with this trial which is entitled to he noticed, in the 
conclusion of this memoir. 

Upon the close of the speeches of the counsel, a 
vast multitude of anxious auditors, and many of those 
who maintained, that the Judge would at last shrink 
from a conviction, assembled in the room where the 
Court then sat, (the same room now occupied by the 
District Court of Philadelphia, up staks .) The argument 
being ended, the Judge turning to the crier, said to 
him, in the mildest and most composed way, " Adjoui^n 
the Court, to meet to-morrow morning, ia the room on 
the ground floor of this building. This is an important 
case — the citizens manifest a deep interest in its result, 
and it is but right that they should be allowed, without 
too much inconvenience to zvitness the administration of 
the justice of the country ; to which, all ]\ien, great and 

SMALL, ARE ALIKE BOUND TO SUBMIT." 



CHAPTEE YI. 

WILLIAM TILGHMAN, L. L. D., 

BORN, AUGUST, 1756— APPOINTED CHIEP JUSTICE, 1S06— DIED, APRIL, 1827. 

In the biography of Chief Justice Tilghman, we have 
drawn extensively upon the eulogy pronounced by Mr. 
Binney, and we rely for our justification in doing so, 
upon two considerations. First, that the characteristic 
circumstances of the life of the Chief Justice are therein 
more authentically set out; and secondly, because the 
style and merit of the eulogist are almost as deserving 
of admiration, as the virtues which he commemorates. 
The chief difficulty encountered in this part of our 
work, is in making any selection or extracts from a 
production, in which all the parts are so admirably 
fitted and adjusted, as to be essential to each other, 
and to be equally entitled to regard. Like severing 
the Graces, in destroying the grouping you impair the 



380 THE FORUM. 

beauty, symmetry, and effect of each individual figure. 
When Dr. Johnson, among his Lives of the Poets, in- 
troduces that of Dr. Parnell, he does so with these 
remarks : " This is a task which I should very wil- 
lingly decline, since the life of Parnell has been lately 
written by Goldsmith, a man of such variety of power 
and such felicity of performance, that he always seemed 
to do best that which he was doing ; a man who had 
the art of being minute, without tediousness ; and 
general, without confusion j whose language was copi- 
ous, without exuberance ; and easy, without weakness ; 
what such an. author has told, who would tell again?" 
If Dr. Johnson, with this preface, satisfied himself 
with an abstract from the production of one whom he 
thus praised, we certainly require no apology for our 
drafts upon the labors and learning of such a man as 
Binney. Besides, the admirable eulogy referred to, 
with the exception of its insertion in the fifteenth vol- 
ume of Sergeant and Eawle's Reports, may be consi- 
dered as out of print; and assuredly, those who have 
heard it, or read it, and know its value, would not 
wilhngly acquiesce in its loss. Substantially pre- 
senting it in this shape, although it can add nothing 
to the fame of its author, and is by no means ne- 
cessary to the memory of the departed, it will undoubt- 
edly give value to this work, so as to leave us at 
some loss to determine, whether we are influenced in 
what we thus do, by sordid selfishness, generous spn- 



WILLIAM TILGHMAN, L.L.D. ' 3g]_ 

pathy, or the spontaneous admiration of genius and 
virtue. 

The law, let it be remembered, is the only sovereign 
in a republic. The judge is the right hand of the law, 
and the ruler of the people, and in the language of 
Divine inspiration, " He that ruleth over men, must be 
just ; ruling in the fear of God. We should provide 
out of all the people, able men, such as fear God — men 
of truth, hating covetousness, and place them over men, 
and let them judge them." Men, unlike Felix, looking 
for money, that he might loose Paul ; or leaving his 
prisoner in bonds, that he might show the populace a 
favor. Unlike Pilate, sacrificing the innocent to the 
rampant and unholy clamor of a bloodthirsty mob. 
Unhke the " atrocious Star-Chamber Judges," who, to 
serve the king, or gratify their own cruelty, trampled 
upon all laws, divine and human, and recklessly and wan- 
tonly sacrificed some of the noblest of the human race. 
And if there ever was a man whose pruiciples and 
practice were modelled in strict conformity to these 
requirements, it was the subject of this sketch, to 
whom the attention of all men — and especially of the 
judiciary — ^is earnestly recommended. 

William Tilghman was born on the twelfth of Au- 
gust, 1756, upon the estate of his father, in Talbot 
county, on the Eastern shore of Maryland. 

His paternal great-grandfather, Richard Tilghman, 
emigrated to that Province from Kent county, in Eng- 



gg2 THE FORUM. 

land, about tlie year 1662, and settled on Chester 
river, in Queen Ann's county. 

His father, James Tilghman, a distinguished lawyer, 
is well known to the Profession in Pennsylvania, as 
Secretary of the Proprietary Land-office. 

His maternal grandfather was Tench Francis, the 
elder, of this city, one of the most eminent lawyers 
of the Province, the brother of Richard Francis, au- 
thor of "Maxims of Equity," and of Dr. Philip Francis, 
the translator of Horace. 

He entered college in the year 1769 ; Dr. Smith 
being then the Provost, and Dr. Francis Allison, the 
Vice-provost, the latter of whom instructed the stu- 
dents in the higher Greek and Latin classics; and 
such was the devotion to literature, of the eminent 
pupil of whom we are speaking, that after he had 
received the Bachelor's degree, and was in the ordi- 
nary sense, prepared for a profession; he continued 
for some time to read the classics, with the benefit of 
Dr. Allison's prelections. 

In February, 1772, he began the study of the law 
in this city, under the direction of the late Benjamin 
Chew, then at the head of his profession, afterwards 
Chief Justice of the Supreme Court of Pennsylvania, 
and at the close of the High Court of Errors and Ap- 
peals, its venerable President. 

From 1776 to 1783, partly on Ms father's estate, 
and partly at Chestertown, whither his family had 



WILLIAM TILGHMAN, L.L.D. ' ggg 

removedj he continued to j^ursue his legal studies, 
reading deeply and laboriously, as he has himself re- 
corded, and applying his intervals of leisure to the 
education of a younger brother. 

In 1788, and for some successive years, he was 
elected a representative to the legislature of Maryland. 

In 1793, a few months previous to his marriage 
with Miss Margaret Allen, the daughter of Mr. James 
Allen, he returned to this city, and commenced the 
practice of the law, which he prosecuted until his 
appointment by President Adams, on the 3d of March, 
1801, as Chief Judge of the Circuit Court of the United 
States for tliis circuit. 

The Court in which his judicial abihty was first 
made known, had but a short existence. It was 
established at the close of the second administration 
of our government ; and although tliis particular mea- 
sure was deemed by wise men on all sides, and is still 
cited by many of them as the happiest organization of 
the federal judiciary, yet, having grown up amid the 
contentions of party, it was not spared by that, wliich 
spares nothing. In a year after its enactment, the law 
which erected the court was repealed ; and the judges 
who had received their commissions during good beha- 
vior, were deprived of their ofl&ces, without the impu- 
tation of a fault. 

After the abolition of the Circuit Com^t, Mr. Tilgh- 
man resumed the practice of his profession, and con- 



384 THE FORUM. 

tinued it until the thirty-first of July, 1805, when he 
was appointed president of the Court of Common 
Pleas in the First District. 

He remained hut a few months in the Common Pleas. 
In the beginning of the year 1806, Mr. Shippen, the 
Chief Justice of the Supreme Court, yielded to the 
claims of a venerable old age by retiring from the of&ce, 
and on the twenty-fifth of February, Mr. Tilghman was 
commissioned in his place by Governor M'Kean, him- 
self a great lawyer and judge, and interested as a father, 
in the court which he had led on to distinguished repu- 
tation in the United States. 

From the time that he took his seat on the bench, 
at March term, 1806, for the space of more than ten 
years, he delivered an opuiion in every case but five; 
the arguments in four of which he was prevented from 
hearing by sickness, and in one by domestic afjQiction; 
and in more than two hundred and fifty cases, he either 
pronounced the judgment of the court, or his brethren 
concurred in his opinion and reasons without a com- 
ment. 

His attention, from the beginning to the end of the 
twenty-one years that he presided in the Supreme 
Court, was undeviatmgly given to every case ; and he 
prepared himself for all that required consideration at 
his chamber, by taking an accurate note of the autho- 
rities cited by counsel, and of the principal heads and 
illustrations of their arguments. 



WILLIAM TILGHMAN, L. L. D. 385 

In addition to these strictly official duties, the legis- 
lature of Pennsylvania committed to the judges of the 
Supreme Court, in the year 1807, the critical duty of 
reporting the English statutes in force in this Common- 
wealth. The duty is called critical, for so undoubtedly 
it was considered by the chief justice. 

The labors thus recited, entitle this eminent judge 
to the praise of great industry ; a virtue which it is an 
offence against morality to call humble, in one who is 
the keeper both of his own talents, and, not seldom, 
of that of others also. It was, however, industry of 
the highest order — a constant action of the intellect, 
practically applied. 

Cliief Justice Tilghman could have done as much 

with this bar, by the force of his authority, as any 

judge that ever sat in his seat. His investigations 

were known to be so faithful, his reasoning so just, 

and his convictions so impartial, that there would have 

been a ready acceptance of his conclusions, without a 

knowledge of the steps that led to them. He asked, 

however, for submission to no authority so rarely as 

to his own. You may search his opinions in vain for 

anything hke personal assertion. He never threw the 

weight of his office into the scale, which the weight of 

his argument did not turn. He spoke and wrote as 

the minister of reason, claiming obedience to her, and 

selecting with scrupulous modesty such language as, 

while it sustained the dignity of his office, kept down 



386 THE FORUM. 

from the relief, in whicli he might well have appeared, 
the individual who filled it. Look over the judgments 
of more than twenty years, many of them rendered 
by this excellent magistrate, after his title to unlimited 
deference was established by a right more divine than 
kings. There is not to be found one arrogant — one 
supercilious expression, turned against the opinions 
of other judges ; one vain-glorious regard towards him- 
self. He does not write as if it occurred to him that 
his writings would be examined to fix his measure, 
when compared with the standard of great men, but 
as if their exclusive use was to assist in fixing a stand- 
ard of the law. 

But his great work, that at which he labored with 
constant solicitude, but with scarcely a passing hint 
that he was engaged m it, is the thorough incorporation 
of the principles of scientific equity with the law of 
Pennsylvania, or rather the reiterated recognition of 
the bench, that, with few exceptions, they form an 
inseparable part of that law. 

The distinction of law and equity is well understood 
by the profession, but difficult to explain to popular 
apprehension. It is a great but prevalent mistake, to 
suppose that a court of equity is the reproach of the 
common law, whereas it is its praise — at least the 
praise of its illustrious origin. The common law, being 
originally the law of freemen, of that Saxon stock from 
which is derived the freest race upon earth, left nothing 



WILLIAM TILGHMAN, L.L.D. 337 

to the discretion of the judge or the monarch. It was 
itself the great arbiter, and ruled every question by 
principles of great certainty and general appHcation. 
In its earliest day, a day of comparative simplicity, its 
general principles and forms embraced and adjusted 
almost every transaction ; and when they did not, the 
authority of the common law courts was legitimately 
extended by new writs, devised in the then incipient 
chancery. 

In the department of penal law, he was relieved by 
his office from frequent labors, although he annually 
presided in a Court of Oyer and Terminer for this 
county. His knowledge of this branch of the law was 
extensive and accurate. His judgment in it, as in 
every other, was adrnkable. His own exemption from 
moral infirmity might be supposed to have made him 
severe in his reckonings with the guilty ; but it is the 
quality of minds as pure as his to look with compassion 
upon those who have fallen from virtue. He could 
not but pronounce the sentence of the law upon such 
as were condemned to hear it; but the calmness, the 
dignity, the impartiality, with which he ordered theu' 
trials ; the deep attention wliich he gave to such as 
involved life, and the touching manner of his last ofiice 
to the convicted, demonstrated his sense of the peculiar 
responsibUity wliich belonged to this part of his func- 
tions. In civil controversies, such excepted as, by 
some feature of injustice, demanded a notice of the 



388 THE FORUM. 

parties, lie reduced the issue jjretty much, to an abstract 
form, and solved it as if it had been an algebraic pro- 
blem. But in criminal cases, there was a constant 
reference to the' wretched persons whose fate was sus- 
pended before him; and in the very celerity with 
which he endeavored to dispose of the accusation, he 
evinced his sympathy. It was his invariable effort, 
without regard to his own health, to finish a capital 
case at one sitting, if any portion of the night would 
suffice for the object ; and one of his declared motives 
was to terminate as soon as possible that harrowing 
sohcitude, worse even than the worst certainty, which 
a protracted trial brings to the unhappy prisoner. He 
never pronounced the sentence of death without severe 
pain; in the first instance, it was the occasion of 
anguish. In this, as in many other points, he bore a 
strong resemblance to Sir Matthew Hale. His awful 
reverence of the great Judge of aU mankind, and the 
humility with which he habitually walked in that pre- 
sence, made him uplift the sword of justice, as if it 
scarcely belonged to man — himself a suppliant — to let 
it fall on the neck of his fellow man. 

The practice of the law is not without its trials to a 
judge of the happiest temper. The efficiency of the 
advocate, in some causes, depends upon his giving the 
rein to his ardor, and in moving with a velocity which 
kindles others as well as himself These rapid move- 
ments are unfriendly to a nice selection of phrases, 



WILLIAM TILGHMAN, L.L.D. 339 

and to that deference to the opposing sentiments of 
the court, which the due order of a judicial tribunal 
demands. It argues little against the judge or the 
advocate, that in cases like these, there should be mo- 
mentary lapses of temper. But whose memory is so 
unfaithful as to record one such incident in the judicial 
life of Chief Justice Tilghman? He knew the respect of 
the bar for him to be so cordial, that he never suspected 
offence ; and they knew his integrity and fidelity to 
the law to be such, that they never placed liis judg- 
ment, on any occasion, to the account of prejudice, 
partiality, or impulse. The reign of sound law and 
impartial justice in the Supreme Court of the State, 
^ has therefore been the reign of courtesy and kindly 
feelings between the bench and the bar ; and though 
dead, he will continue to speak, as if living, in favor 
of this natural and delightful union. 

Upon the whole, his character, as a judge, was a 
combination of some of the finest elements that have 
been united in that office. Among those wliich may 
be regarded as primary or fundamental, were a rever- 
ential love of common law, and a fervent zeal for jus- 
tice, as the end and intended fruit of all law. The 
former was enlightened by laborious study in early 
life, the latter was purified, like the constitution of his 
whole mind, by a ceaseless endeavor to ascertain the 
truth. In the service of these exalted affections he 
never faltered. His effort in every cause was to 



390 THE FORUM. 

satisfy them both ; and by attention to the researches 
of others, patient inquiry for himself, and a judgment 
singularly free from disturbance of every kind, he 
rarely failed to attain his object. Other judges may 
have had more learning at immediate command, — none 
have had their learning" under better discipHne, or in a 
condition more effective for the duty on which it was 
employed. His mind did not flow through his opinions 
in a stream of exuberant richness, but its current was 
transparently clear, and its depth was never less than 
the subject requked, however profound. He was, 
moreover, equal to all the exigencies of his ofiS.ce, and 
many of them were great, without any such exertion 
which appeared to distm^b the harmony, or even the 
repose, of his faculties ; and he has finally laid down 
his great charge, with the praise of being second to 
none who preceded him in it, and of leaving his coun- 
trymen without the expectation or the desire of seeing 
him surpassed by those who shall follow him. 

His moral qualities were of the highest order. It 
has been said, that the panegyrists of great men can 
rarely direct the eye with safety to their early years, 
for fear of lighting upon the traces of some ii-regular 
passion. But to the subject of this discourse may 
with justice be applied the praise of the Chancellor 
De Aguesseau, that he was never known to take 
a single step out of the narrow path of wisdom ; 
and that, although it was sometimes remarked he 



WILLIAM TILGHMAN, L. L. D. 39^ 

had been young, it was for the purpose not of pal- 
liating a defect, but of doing greater honor to his 
virtues. 

Of his early life, few of his cotemporaries remain to 
speak ; but those few attest, what the harmony of his 
whole character in latter years would infer, that his 
youth gave presage, by its sobriety and exemplary 
rectitude, of all that we witnessed and admired in the 
maturity of his character. It is great praise to say of 
so excellent a judge, that there was no contrariety be- 
tween his judgments and his life, — that there was a 
perfect consent between his j)ubhc and his private 
manners, — that he was an engaging example of all he 
taught, — and that no reproach, which, in his multifa- 
rious employment, he was compelled to utter against 
all the forms of injustice, pubUc and private, social and 
domestic, — against all violations of law, from crime 
down to those irregularities at which, from general in- 
firmity, there is a general connivance, — in no instance, 
did the sting of his reproach wound his own bosom. 
Yet it was in his hfe only, and not in his pretensions, 
that you discerned this his fortunate superiority to 
others. In his private walks he was the most unpre- 
tending of men. He bore constantly about him those 
characteristics of true greatness, simpHcity and mo- 
desty. Shall I add, that the memory of aU his ac- 
quaintance may be challenged to repeat, from his most 
unrestrained conversation, one word or aUusion, that 



392 THE FORUM. 

miglit not have fallen with propriety upon the ear of 
the most fastidious delicacy. 

The temper of the Chief Justice was singularly 
placable and benevolent. It was not in his power to 
remember an injury. A few days before his death, 
he said to two of his friends, attendant upon that 
scene, " I am at peace with the world. I bear no ill- 
will to any human being ; and there is no person in 
existence to whom I would not do good, and render a 
service, if it were in my power. No man can be 
happy who does not forgive injuries which he may 
have received from his fellow-creatures." 

On the last anniversary that he ever saw, he begins 
his paper with the prophetic declaration, 

" This day completes my seventieth year, the period which is said 
to bound the life of man. My constitution is impaired, but I can- 
not sufl&eiently thank Grod that my intellects are sound, that I am 
afflicted with no painful disease, and that sufficient health remains 
to make life comfortable. I pray for the grace of the Almighty, to 
enable me to walk during the short remnant of life in his ways. 
Without his aid, I am sensible that my efforts are unavailing. May 
I submit with gratitude to all his dispensations ; never forget that he 
is the witness of my actions, and even of my thoughts, and endeavor 
to honor, love, and obey him, with all my heart, soul and strength." 

That "remnant of life" to which his last memorial 
refers, unfortunately for us, was short, as he had pre- 
dicted ; but he walked it as he had done all that went 



WILLIAM TILGHMAN, L.L.D. 393 

before, according to his devout aspiration. He conti- 
nued to preside in the Supreme Court with liis accus- 
tomed dignity and effect, until the succeeding winter, 
when his constitution finally gave way, and after a short 
confinement, on Monday, the thirtieth of April, 1827, 
he closed his eyes for ever. It will be long, very long, 
before we shall open ours upon a wiser judge, a sounder 
lawyer, a riper scholar, a purer man or a truer gentleman. 

Having contemplated the jewel — the mind, let us 
turn for a moment to the casket — the body, that 
contained it. 

Judge Tilghman's person was slightly formed; he 
was about five feet eight inches high, with mild gray 
eyes, fine teeth, handsome features, and of the most 
gentle and amiable expression of countenance. The 
portrait of him in the Law Library bears a perfect re- 
semblance to the original. It is a copy taken by 
Neagle, from a painting by Stewart, in the possession 
of the late Mrs. Greenleaf, the sister-in-law of the 
Chief Justice. His voice was very sweet, though not 
strong, and his dej)ortment upon the bench was marked 
by that attention which springs only from a conscien- 
tious desire of a faithful performance of duty. Though 
he was nearly seventy-one years old at the time of his 
death, his hair retained its original color of dark brown. 
It was thin, and carefully combed down from the 
centre of the crown, on either side, with the most pris- 
tine simplicity. 

VOL. I. — 26 



39^ THE FORUM. 

He was too mild and gentle ever to liave made 
an energetic debater ; in addition to wMcli, lie spoke 
somewliat quickly, and with occasional hesitation. 
His language was never figurative, and its chief 
strength consisted in its clearness and simplicity, 
which was, in truth, characteristic of his mind. He 
was without the least affectation, vanity, or parade. 
He performed his duty because it was his duty, not to 
secure the approval of men ; and he did it with unde- 
viating punctuality and ability. He had a great re- 
gard for a dignified administration of justice ; and the 
only time that we ever observed him to be disconcerted 
upon the bench was upon one occasion, when, the busi- 
ness of the day having terminated, his associates rose 
suddenly, and were walking off without a formal ad- 
journment, when, turning to them, with his usual mo- 
desty,* but with some evidence of mortification, he 
said, " Gentlemen, shall zve adjourn, run aivay, or re- 
st^n ? 

That he was a man of courage no man can doubt ; 
but it was so tempered by mildness and moderation, 
and he was uniformly treated with so much respect 



* Of all the judges of whom juridical history lias furnished any ac- 
count, there is none whom Chief Justice Tilghman so strongly resembled 
as Sir John Eardly Wilmot ; whose purity, modesty, and utter absence of 
ambition, were certainly never surpassed, and scarcely ever equalled. — 
Vide his life, written by his son, and the notice of it in Lord Campbell's 
Chief Justices. 



WILLIAM TIL GEM AN, L. L. D. 395 

by all the members of the bar, that it is to be doubted 
whether he ever had occasion to rouse himself into 
any disj^lay of energy, firmness, or authority. Yet, 
with all his merits, and certainly he had no superior 
in those respects, his judicial manner was not equal to 
Judge Washington's, though superior to any other man 
that ever held his seat upon a Pennsylvania Bench. 
They were equally learned in the law, or, perhaps, 
Tilghman's reading was the more comprehensive of the 
two. They were equally confided in by the public ; 
but the advantage of Washington over Tilghman, con- 
sisted in his imperturbable composure, "his masterly 
inactivity," until the hour of action arrived, when he 
struck an unerring and final blow. Whether he had 
less timidity than his great rival, it is difiicult to say, 
but he showed less, perhaps, than any man that ever 
held a similar post. 

Judge Tilghman's appointment to the Circuit Court, 
which has been mentioned, was the last act of the 
administration of John Adams. He was one of the 
midnight judges, as they were called ; but it may be 
truly said, that no mid-c/«^ j^^dge ever surpassed liim, 
in the lustre of his official fame, or will survive him 
in the memory of all by whom he was known. 



CHAPTER YII. 

H. H. BRECKENRIDGE, L. L. D. 

BORN, 1748 — DIED, 1816. 

One of the most extraordinary men that, perhaps, 
ever held a seat upon the judicial bench of the Supreme 
Court of the State of Pennsylvania, was Hugh Hemy 
Breckenridge. He was horn in Scotland, in 1748, of 
humble parents, with whom he came to this country, 
at the age of five years. He, almost unassisted, pursued 
his course of early life, in " shallows, in miseries," and 
in poverty. The very difficulties thus encountered, 
imparted to him that energy of character, that perse- 
vering industry, which finally raised him to high judi- 
cial honors. After having obtained, as he best might, 
a very scanty education, he, at the age of sixteen, 
became a teacher in a subordinate academy in Mary- 
land. Here he remained for nearly two years. During 
that time, though his salary was very limited, by 



H. H. BRECKENRIDGE, L.L.D. ' 39'J' 

means of the most rigid economy, lie succeeded in 
laying up a sufficient sum to enable Mm to enter 
Nassau Hall, (Princeton College,) of which Dr. Wither- 
spoon was at that time president. He was in the 
next class to Luther Martin, James Madison, and 
William Bradford. He graduated in the year 1774, 
and in 1777, became a chaplain in the army. 

In 1778, he commenced the study of the law, with 
Samuel Chase, afterwards one of the judges of the 
Supreme Court of the United States; and in 1780 
was admitted to practice in the Supreme Court of 
Pennsylvania, at wliich time Thomas M'Kean was 
chief justice, and Edward Shippen and Jasper Yeates 
associate justices. 

In 1799, Chief Justice M'Kean, having been elected 
governor of Pennsylvania, and having resigned his 
judicial position. Judge Shippen became chief justice, 
and Mr. Breckemidge was appointed in his i^lace. In 
1806, Judge Tilghman succeeded Judge Shippen as 
chief justice, and Judges Yeates and Breckenridge 
retained their places as associate judges. 

After his appointment, Breckenridge lived with his 
accustomed moderation, and by dint of economy, se- 
cured to himself a moderate competence, leaving at 
his death, which happened in 1816, a comfortable sub- 
sistence for his family ; and at the time owing no one 
anything, and nothing being due to Mm but a quarter's 
salary. 



398 



THE FORUM. 



He was a man of considerable genius and humor, 
as his "Modern Chivahy," and "Law Miscellany," 
abundantly prove. But his eccentricities were at 
times so great as almost to amount to insanity; if 
one half the traditions in regard to him are entitled to 
our rehance. 

There never appeared to be much cordiality be- 
tween the associate judges ; on the contrary, it might 
be said that there existed a want of harmony, if not 
a decided enmity between them. Indeed, two men of 
more dissimilar appearance and habits could scarcely 
be imagmed. 

It is related of Judge Breckemidge, that, being a 
nervous man, upon one occasion, when he and Judge 
Yeates had as usual taken their seats at the opposite 
ends of the bench, before the arrival of the chief jus- 
tice. Judge Yeates was employed eating an apple, and 
probably, from the difficulty in masticating, making 
more noise than was agreeable. Judge Breckemidge 
bore it for a long time, with some signs of impatience, 
untn at length, being unable to endm^e it any longer, 
he tm'ned petulantly to his learned brother, and ex- 
claimed, "I think, sir, you once informed me that you 
had been to London, visited Westminster Hall, and 
saw Lord Mansfield on the bench." "Yes, sk," said 
Judge Yeates, " I had that honor." " Pray, sii'," was 
the tart reply, "did you ever see his lordship munch 
a pippin on the bench ?" This ended the coUoquy. 



H. H. BRECKENRIDGE, L.L.D. 399 

Judge Yeates was a tall and portly personage, and 
about seventy years of age, of a handsome, florid, and 
benignant face, with full, large, blue eyes; dressing 
with considerable neatness, with hair perfectly white, 
and in short, a fine representative of a gentleman of 
the old school. 

Judge Breckenridge was about the same height and 
age, perhaps rather younger; somewhat bent in the 
shoulders ; dark, sallow complexion ; small, black, 
penetrating eyes, deeply set in his head; face much 
wrinkled; sunken mouth, caused probably from the 
loss of teeth ; and hair of " sable silvered." His 
dress, if it might be so called, was the most careless 
that could be conceived ; and his address, if possible, 
worse than his dress. Wearing a rusty, unbrushed 
black coat, and vest, and with very little difference in 
color between them and his shirt. In the coldest 
weather he sat with his breast entirely open; his 
small clothes without suspenders, and neither exactly 
on, nor off; his beard unshaven, and his hair un- 
dressed; with large, ungainly boots; cravat twisted 
like a rope, and his whole demeanour apparently any- 
thing but attentive, to the business of the court. 

This is the most favorable portrait that could be 
drawn of his exterior. Indifference to ai)pearance had 
given place with him to utter contempt of it. He has 
been known to sit upon a trial, at a case at Nisi Prius, 
with coat and jacket both off, boots drawn, and feet 



400 



THE FORUM. 



propped up against tlie desk ; and this, too, while sur- 
rounded by the most polished and distinguished men 
that ever graced a judicial tribunal. Some of his 
excesses were such as to forbid description, consistently 
with regard for the memory of an otherwise worthy 
and estimable person. He was nevertheless a man of 
undoubted integrity, and by no means deficient in 
intellectual power; but those qualities rendered his 
aberrations from the hienseance of society the more 
remarkable and inexcusable. So much for the appear- 
ance, habits, and manners of the associates. 

Judge Yeates was an excellent lawyer, and not 
unambitious of high character, in judicial as well as 
classical hterature. Judge Breckenridge, though a ripe 
scholar, and by no means deficient in legal lore, took 
but little pains to exhibit his knoAvledge in his written 
opinions ; and, as has been justly said of him, in the 
most of his discussions even of the gravest subjects, 
intermingled some facetious story, or a quotation fi'om 
ancient or modern poets, either in the way of merri- 
ment or ridicule. Judge Yeates was a great lover of 
society, and entered deeply into the enjoyments and 
pleasures of convivial or fashionable Hfe. Judge Breck- 
enridge, on the contrary, was reserved and misanthro- 
pic. He resolved never to dine out, for fear his host 
might some day be a suitor in his court. He seemed 
to shun social or convivial scenes, and to hold conmiu- 
nion only with himself. The former delighted in the 



H. H. BRECKENRIDGE, L.L.D. 401 

world as it was created for him — as he found it ; the 
latter created a world of his own, and each seemed to 
dwell in his appropriate and opposite sphere. 

It could scarcely be reasonably supposed, that two 
such men should ever agree, unless to disagree ; and 
it so turned out that, in all the numerous decisions 
pronounced by the Supreme Court, while Judge Breck- 
enridge was upon the bench, there were very few in 
which he agreed in opinion with Judge Yeates, and 
never in any case did he unite with him against the 
chief justice. The reports themselves will show this, 
without reference to particular cases. 

This diversity may have been attributable to a radi- 
cal difference between the tAvo men. For his moderate 
means, Breckenridge may be said to have been a liberal 
though an exact man. Judge Yeates was a man of 
great wealth, but of a fondness for accumulation, which, 
whatever may have been the generosity of his feelings, 
prevented its exercise. These differences may have 
contributed, with other causes, to the estrangement we 
have mentioned ; but, however it may be, om' business 
is not to explain or adjust quarrels, but to describe 
men. One tiling is certain, that no two men were 
more irreconcilably opposed, in almost every respect, 
than the subjects of this notice. 

But to advert more particularly to Judge Brecken- 
ridge, to whom this sketch is mainly directed. 

At an early period of his judicial career, the Judges 



402 THE FORUM. 

of the Supreme Comi, be it known, rode the cn-cuit, 
severally holding the Nisi Prius in the different coun- 
ties. Ui:)on one of these occasions, when Judge Breck- 
enridge was about starting for Chester, a lawyer, who 
was scarcely less eccentric than the subject of this 
notice, and who, himself, afterwards became a Judge 
of the Supreme Court, called upon Breckenridge, and 
proposed to accompany him to the county town. 

" He was," said the lawyer, in relating the occur- 
rence, " a wonderful man ; he never permitted me to 
be alongside of him during a journey of more than 
twenty miles. For a while he rode ahead of me, and 
when I came up to him, he would fall in the rear ; and 
when I slackened my pace, so that he might come up, 
he would again start ahead; at length, however, in 
this irregular and unsociable way, we reached the 
place of our destination. We there parted, and put 
up at different houses. 

" In the evening of our arrival, I called, as a mat- 
ter of courtesy, at his lodgings, when, after some ques- 
tions, he inquired as to the state of the issue list. I 
informed him, and told him I had the first case upon 
the list; he asked what it was about? this, also, I told 
him ; and he then requested to know what was the 
evidence and the legal principles upon which I rehed ? 
Here I hesitated, saying, that I did not wish to contri- 
bute to a pre-judgment of the cause. ^ Never fear,' 
said he, ' I shall not be biased.' Whereupon, I pre- 



n. n. BRECKENRIDGE, L. L. D. 4()3 

sented the whole matter to hun. He said nothing, and 
shortly after I took my leave. 

" Next morning, as expected, the case was called ; I 
opened it fully, and I thought, triumphantly presented 
the facts, and submitted my law. The opposite coun- 
sel rose to reply, when, to my infinite mortification 
and astonishment, the Judge told my adversary ho 
need not say any thing ; that the plaintiff had no case, 
and he should direct a non loros, wliich he accordingly 
did, forthwith." 

I have nothing to say, as to the dignity of this pro- 
ceeding, but I feel compelled to observe, that if ever 
a lawyer deserved a non fro8^ it was the counsel in 
this case, who was so much mortified and ashamed at 
getting it. 

This, to those who knew Judge Breckenridge, will 
be deemed a highly characteristic anecdote. But we 
regret to turn to another of a less favorable stamp, in 
which the wit is surpassed by the impropriety. 

In a famous Ejectment, tried in the Nisi Prius, be- 
fore Judge Thomas Smith, in one of the interior courts 
of the State, Judge Breckenridge, at that time at the 
bar, was concerned for the plaintiff, whose claims to a 
verdict, were considered somewhat doubtful. The 
client, upon being uiquu-ed of, said his witnesses 
were all ready, and prepared, in common phrase, " to 
toe the marJc ;" " but," added he, " I am afraid of the 
judge — don't you thiiik a couple of joes would, if paid 



^Q^ THE FORUM. 

to Mm, be serviceable to us ?" " Pooh," said the coun- 
sel, "the judge would not listen to such a hint, or 
would probably charge against you, or commit you ; — 
perhaps twenty joes might answer your purpose, but 
they had better pass through my hands." "Well," 
said the plaintiff, " it's a valuable farm, and I have no 
objection ;" and accordingly handed over the money. 
Upon this being done, Breckenridge approached Judge 
Smith and spoke to him for a while, and then resumed 
his seat The Judge commenced his charge to the 
jury, described the points in issue with great clear- 
ness — ^presented the plaintiff's claim and his evidence ; 
then took up the defence, and after brushing away 
subordinate matter, (during all which time the plaintiff 
showed the greatest anxiety,) at last came to the turn- 
ing point, which he determined for the plaintiff, who, 
unwilling to contain himself any longer, exclaimed, 
"Ah! now the joes begin to work." Breckemidge, 
some years after, while upon the bench, related this 
story upon a festive occasion, in the presence of Judge 
Smith, who rebuked him sharply, for having thus slan- 
dered him and degraded the character of justice ; and, 
it is said, never afterwards admitted Breckemidge into 
his confidence. 

There are other odd reminiscences related of him, 
which may throw additional light upon his idiosyncra- 
cies. During the time, as has been said, the circuits 
existed, a friend of the Judge, riding in his carriage 



H. H. BRECKENRIDGE, L.L.D. 4()5 

in the western part of the State, while a prodigious 
storm of wind and rain prevailed, saw a figure ap- 
proaching, which resembled, what might be conceived 
of Don Quixote, in one of his wildest moods : a man, 
with nothing on but his hat and boots, mounted upon 
a tall, raw-boned Rosenant, and riding deliberately 
through the tempest. On nearer approach he disco- 
vered it to be Judge Breckenridge, and upon inquiring 
what was the cause of the strange phenomenon, Breck- 
enridge informed him, that seeing the storm coming on, 
he had stripped himself and put the clothes under the 
saddle ; " because," said he, " though I am a judge, I 
have but one suit, and the storm, you know, would 
spoil the clothes ; but it could'nt spoil mer 

In order to understand the full application of this 
last notion, strange as it may seem, after what has 
been said of the Judge's personal habits, it should be 
mentioned, that he was a great devotee to shower- 
baths, which he regularly continued the year through, 
and upon some occasions, when the luxury of a regular 
bath could not be obtained, he would place himself 
behind the grating of a basement window, or some 
similar contrivance, and employ some sturdy servant 
from the outside, to dash a bucket of water upon him 
through the grating, while in that position. 

Notwithstanding these wliims and caprices, he was 
by no means deficient in firmness and fortitude. His 
laborious youth, his self-sacrificing and persevering in- 



4.06 THE FORUM. 

dustiy, in a word, give abundant evidence of tlie in- 
domitable will. But though possessed of courage, his 
disposition was to avoid quarrels of all kinds ; he ab- 
horred duelling, and always preferred wit to bravery. 
Having, during the Revolutionary war, severely lam- 
pooned General Lee, (at that time one of the ruling, 
though discontented spirits, of the American army,) he 
was hotly pursued by the irritated officer, for the pur- 
pose of personal chastisement. The Judge, however, 
succeeded in reaching his house, and entering and lock- 
ing the door, he rushed up stairs and looked out of the 
window upon his enraged pursuer. " Come down, sir," 
said the General, " and I'll give you a cowskinning." 
" I w^on't," was the ready reply, " if you'll give me 

TWO." 

His contempt for duelling has been mentioned. 
It is reported, that while a young man, he was chal- 
lenged by an English officer to fight a duel — we do 
not answer for the truth of this, but there is an inci- 
dent related in his "Modern Chivalry," not at all 
unhke it, and though referring to another, may have 
been the origin of its being ascribed to the author of 
that work. The following answer to the alleged chal- 
lenge, is no doubt, the production of Breckenridge, and 
is in entire conformity to his views, as always enter- 
tained and expressed : — 

"I have two objections to tliis duel matter — the one is, lest I 



H. n. BRECKENRIDGE, L. L. D. ^Q-J 

should hurt you ; the other is, lest you should hurt me. I don't see 
any good it would be to me, to put a ball through your body; I 
could make no use of you when dead, for any culinary purpose, as 
I would a rabbit or turkey. I am no cannibal, to feed upon the 
flesh of men. Why, then, shoot down a human creature, of whom 
I could make no use? A buffalo would make better meat; for, 
though your flesh might be dehcate and tender, yet it wants the 
firmness and consistency which take and retain salt. At any rate, 
it would not do for a long sea voyage. You might make a good 
barbacue, it is true, being of the nature of a raccoon or oppossum ; 
people are not in the habit of barbacuing anything that is human 
now. And, as to your hide, it is not worth taking off, being little 
better than a two-year-old colt ! So much for you. 

" As to myself, I do not like to stand in the way of anythino- that 
is hurtful. I am under the impression that you might hit me. This 
being the case, I think it most advisable to stay in the distance. If 
you mean to try your pistol, take some object, a tree, or a barn door 
about my dimensions; if you hit that, send me word, and I wiU 
acknowledge that if I had been in the same place, you might also 
have hit me." 

This is not quite equal, for its reasoning, with a case 
which we remember of a member of the bar, who was 
very irritable, sending an invitation to fight, to a 
much younger man, who at once declined the honor, 
in these words : — 

" It is against my conscience to fight a duel, unless the damnation 
were as great to refuse^ as to accept^ a challenge. But my reaso7i, 
as well as my conscience^ is against it. I am a young man, full of 
hfe, and with everything around me to make life agreeable — sue- 



408 THE FORUM. 

cessful noiv^ and full of hope for ih^i. future. You, on the contrary, 
are an old man, your hopes and your life both declining ; in addition 
to which, your temper is so unhappy, that I suppose you at times 
■would thank any one to blow your brains out ; whereas, I am so 
happy that I desire to live, and have much to Kve for. I ask you, 
then, whether we occupy an equal footing ? In any event, I should 
lose everything — and you, nothing^ 

In 1805, Chief Justices Shippen, Yeates and Smith 
were brought before the Senate, charged with oppres- 
sion, in regard to an individual who was committed, 
(as in the case of Oswald,) for a libel touching a suit 
pending in court. The judges were all acquitted. In 
this case Judge Breckenridge manifested great magna- 
nimity. He was not embraced by the impeachment, 
but as he approved of the conduct of the court, he re- 
quested to be permitted to share in the fate of his 
brethren. The House took him at his word, and sent 
up an address for his removal ; and here it was that 
the Governor, as heretofore described, when waited 
upon by a committee, who urged upon him that the 
terms, " may remove," in the Constitution, meant 
" must remove," promptly replied, that he would have 
them to know, that " ma?/' sometimes meant " ivontJ' 
We scarcely know which to admire most, the chivahy 
of Breckenridge, or the fii*mness and independence of 
M^Kean; and we have therefore thus noticed this 
anecdote, in the sketches of both of them, as equally 
honorable to both. 



H. H. BRECKENRIDGE, L.L.D. 4Q9 

To look at Judge Breckenridge, you wouki have sup- 
posed kim to be an ascetic. Not at all ; on the con- 
trary, ke was always mentally engaged eitker in some 
amusing fancy, or in reflecting upon tke fantastical 
fasliions, or ridiculous pretensions or extravagances of 
tke day. 

He always stood up stoutly for tke legal, local and 
literary superiority of Pennsylvania. He used to relate 
witk great gratification kis triumpk over a gentleman of 
Virginia, wko objected to an expression of tke Act of 
Assembly of Pennsylvania, " tkat tke State-kouse yard 
skould be surrounded by a brick wall, and remain an 
open enclosure for ever." But, said Judge Brecken- 
ridge, I soon put kim down, by referring to tkat act of 
tke Legislature of Virginia, wkick is entitled " A sup- 
plement to an act to amend an act, making it penal to 
alter tke mark of an unmarked hog." 

He facetiously maintained, tkat tke only unqualified 
SLAVE IN Pennsylvania, was a candidate for office the 
DAY BEFORE THE ELECTION. From tkesc iustauces, toge- 
tker witk some extracts, to be furnisked kereafter, from 
kis miscellany, it may be easily perceived tkat ke was an 
acute, tkougk an amusing, ratker tkan a grave tkinker. 

Judge Breckenridge wrote some epkemeral poems, 
wkick we merely mention, but cannot pause upon, as 
tkey are not properly witkin tke kmits of tkis work. 
Tkey are creditable to kis genius, but will not outlast 
kis memory. " Modern Ckivalry," anotker production 

VOL. I. — 27 



^20 THE FORUM. 

of his pen, which has passed through several editions, 
is replete with wit and satire. It is said, we know not 
with what truth, to have orighiated m revengeful feel- 
ings, produced by the author's having been refused 
membership in the Philosophical Society of Pennsyl- 
vania.* There are some passages in the work that 
might probably be pressed into the support of this 
notion, but the more obvious tendencies of the work 
seem to be directed against duelling and absurd mili- 
tary display. 

The vein of the judge was almost always humorous 
and ironical ; and perhaps this production, and much 
that is contained in his " Law Miscellany," pubhshed 
in 1814, some two years before his death, will present 
about as accurate a view of his general mode of thought 
as can at this time possibly be obtained. We say at 
this time ; for, in an undertaking of this kind, we re- 
peat, it is not to be disguised, while it is much to be 
regretted, that in our country we are assisted by but 
few memorials of the departed — ^in the career of the 
living, the dead are too often forgotten. In contempt 
of aU hereditary pride or ancestral glory, there is 
scarcely a boy among us that is disposed to acknow- 
ledge that he ever had a great grandfather ; and this 
country, it is therefore feared, will never fui'nish ma- 
terial for the Historical Society ; at all events, never 
until she shall arrive at the years of discretion. We 

'■^ Dubitatur. 



H. H. BRECKENRIDGE, L.L.D. ^.^ 

have, in the language of Bacon, " no knowledge of an- 
tiquity, and no antiquity of knowledge." 

In concluding this outline of Judge Breckenridge, 
we cannot, perhaps, do better than present to our pro- 
fessional reader some of his views, as expressed in his 
Miscellanies, in regard to the " Bes Angustse Domi" 
men, — the best modes of advancement in business, — 
and the no less important subject of avoiding bad 
habits among the youthful members of the bar, in order 
to the attainment of future eminence. These extracts 
not only contain excellent advice, but afford an insight 
into the peculiarities of the mind of their author : — 



THE "RES ANGUST^ DOMI" MEN* 

" Boys are me?i too soon^ and, therefore, always boys. We see 
the skilfol husbandman repressing the luxuriance of his grass, by 
cutting ; or lopinng his tree, to give it base, and make it spread. 
The American genius is vigorous abundantly j but there is an im- 
patience to appear, in the capacity of men, and to undertake a pro- 

* Judge Breckenridge must have borrowed the thought from the fol- 
lowing circumstance : — When he was at Princeton College, he complained 
to Dr. Witherspoon, the president, of the difficulties he encountered, and 
observed that he felt the full force of the "Res Angustte Domi"' doctrine. 
"Aye, but remember, my young friend," said the Doctor, "it is the ^ Res 
Angustce DomV men that always succeed !" 



412 



THE FORUM. 



fession ; which cannot hut he in the way of attaining a great emi- 
nence, A lofty structure requires a deep and hroad foundation. 
' Nor would Italy,' says the poet, ' he raised higher hy valor and 
feats of arms, than by its language, did not the fatigue and tedious- 
ness of using the file disgust every one.' 

" ' Nee virtute foret clarisve potentius arinis, 
Quam lingua Latium ; si non offenderet unum 
Quemque poetarum limte labor et mora.' — Horace. 

" The not having the means of support in going through a regular 
course of education, and waiting a reasonable time for an admittance 
to the bar, is a reason with many for this haste ; but impatience is 
the cause with more. With those that want means, there is, usually, 
industry and perseverance, to make up for this ] but it requires in- 
dustry and perseverance. A medium between easy and narrow cir- 
cumstances is desirable, but not the possession or prospect of an 
estate, independent of the practice. For when there is such a pros- 
pect, or possession, the necessary exertions cannot be excited that 
will make a lawyer. It may be said to be as easy, in the language 
of the scripture, with a view to another object, for a camel, or cable, 
as some suppose it ought to be translated, to go through the eye of 
a needle, as for the son of a rich man to become a lawyer ; or, in 
fact, almost anything else that requires labor. Such must remain 
amongst those, the fruges consumere nati. The Novi homines, the 
res angustaD domi men can alone sui-mount the drudgery of acquiring 
a knowledge of the law ; or sustain the practice. Were I to depict 
the making a man a lawyer, I would change a little the image of 
that moral painting in the tablature of Cebes, where the vu'tuous 
man is represented as climbing a rock, two female figures (sisters) 
self-gofvernment and im- severance^ standing above, and extending 
their hands to encourage him. I would represent one clambering 



H. H. BRECKENRIDGE, L.L.D. 413 

up a precipice, and poverty, like an old and ugly witch, with a flail, 
urging from below. 

" ' Duris in rebus urgens eg-estas.' " 



MODE OF ADVANCEMENT IN LEGAL PRACTrCE. 

" To give a hint that is worth a Jew's eye, as the phrase is, to the 
young practitioner of law — let him endeavor to recommend himself 
to the older and abler of the profession, by showing that he can be 
serviceable in a cause into which he may have had the good foilune 
to be introduced. It cannot be expected of him to do much in the 
higher department of conducting a suit, or arguing the cause upon 
a- point of lawj and perhaps not much in convincing a jury as to the 
conclusion of fact which his client's interest requires to be drawn. 
For it requires an intimate knowledge of the human heart, from 
reflecting upon the operations of our own passions, or from our expe- 
rience and observation of those of others, to enable to persuade the 
mind ; and to this, in the nature of the case, the young cur of the 
profession cannot but be greatly incompetent. But it may be ex- 
pected, and ought to be expected of him, that he will do, what he can 
do ; and to which, until he acquires experience, he may be competent. 
And this is the taking care of the docket ; watching the entries of 
rules ; searching the docket ; copying a declaration, or statement, or 
a notice, or a paper-book for a court of error, &c. Giving audience to a 
client, and keeping him off from the leading counsel, who is otherwise 
engaged in his behalf, and to better purpose than listening to him, 
though the client may not be able to comprehend this. Nevertheless, 
it is what the younger practitioner can do ; for as to the client, he 
measures your attention to his cause, and the interest you take in it, 



414 • THE FORUM. 

by the hearing you give him. The younger in the practice may take 
all or some of these matters on himself j for it is the maxim, and 
ought to be, " Juniores ad lahores^'' — matters of mere labor let the 
junior take. 

In the course of all this business, the younger counsel will find 
himself well rewarded by the information he will acquire of the 
practice, from the corrections and directions of the older in the pro- 
fession. But it is oftentimes the case, that the younger will be for 
doing what they are not capable of doing ; and from a false sense of 
honor and obstinacy of silly pride, they will not do what it may be 
in their power to do. The consequence is, the elder counsel will not 
find his account in being coupled with them, and, therefore, will 
neitlipr take the pains to instruct, nor exert himself to get them 
employed and brought forward in a cause. 

" The false pride of the younger counsel may take the alarm at 
being thought to act a subordinate part in all these inferior matters, 
and especially the being thrown as a tub to the whale, to keep the 
client off; but he will find his account in it, for, by his hearing 
patiently, and seeming- to understand, he will gain the good-will and 
confidence of the client, who will very probably attribute to him his 
success in the cause, if he should happen to succeed. In the petit 
guerre of the trial, there will be occasions when a judicious leadino- 
counsel may safely suffer him to speak. For the discharge of artil- 
lery, even where there is but flash and smoke, may do something by 
the sound ; it may check the progress of an enemy, until the column 
is formed in another quarter. At the same time, by managing the 
piece, the young artillerist will acquire a facility, though he has but 
powder; and may be the better able to direct it when he comes to 
have ball. 

" It is the county and circuit courts, chiefly, that I have in my 
eye in giving these prescriptions, where, in the country, a great deal 
of business presses all at once upon the counsel, and it is of moment 



H. H. BRECKENRIDGE, L. L. D. 4^5 

to have some person in the cause that mil do the hearing business, 
without which a client will not be satisfied. He will sit by you even 
in court, and injure himself by disturbing you. I once was put out of 
humor by one who interrupted me in this manner at an important 
point — an exception to evidence. He jogged me, and I gave him a 
pretty smart jog in return. He was what is called a back-woods 
man, and a hunter. ' I had him (the opponent) in my eye,' said I, 
' his defeat in my eye ; my rifle raised ; and now, by that jog on the 
elbow, I have lost my shot.' * * * # * 

" Again, on being applied to, for the purpose of advice as to the 
bringing a suit for a client, you will doubtless advise according to the 
best of your judgment. But take it to be the case that you have been 
consulted, and the evidence fairly disclosed to you, and you have 
approved the bringing suit, the plaintifi", in your opinion, having the 
law clearly in his favor. But, upon trial, though he proves all that 
he had undertaken to prove, and the defendant nothing to overthrow 
it, so as to change the law, which you had pronounced to be in his 
favor, yet the decision of the court has been against you, what are 
you then to do. I will not say what you are to do, but I will state 
to you the address of a young practitioner whom I once knew, not 
overburthened with legal knowledge, at least not the greatest lawyer 
in Christendom, who happened to be in the predicament of which I 
speak, and being upbraided by his client with the usual language, 
' did you not tell me, I had the law on my side ?' ' And did I not 
tell the court so, too,' says the advocate. ' Did you V says the client. 
' Ay, did I; to their faces;' I told them you had the law on your 
side.' The governor can give commissions, but nature only can give 
sense. What could a client have more to say?" 



416 



THE FORUM. 



AVOIDING BAD HABITS AMONG THE YOUNG 
MEMBERS OF THE BAR. 

" Lastly, I come now to say a little, on, perhaps, a more important 
point; that of self-preservation from bad habits. These are fre- 
quently acquired from mere imitation, or the idea of being a fashion- 
able fellow ; such as smoking segars, which is detestable in a young 
person, and never fails to exhibit to me the evidence of a bad family 
education, or indulgence. Or, if not proceeding from that source, 
the effect of puppyism, which bespeaks a mind naturally Httle, and 
of the petit maitre kind. Imitators are contemptible everywhere ; 
such as at London, or Paris, your opera-glass coxcombs. The 
wearing spectacles, some years ago, was common in Philadelphia, 
among the young men, because there happened to be a few great" 
men there, in the profession of the law, that wore spectacles : Wil- 
son, Lewis, Coxe, and Wilcox. They wore them because they 
needed them ; on account of the convexity of the visual orb. But 
the use of glasses by their imitators, when they walked the streets, 
was from an affectation of being thought learned men, because they 
resembled such in a nearness of vision, and the necessity of using 
lenses on the nose. It was more pardonable in a blind man whom 
I once knew, who wore spectacles to make people believe that he 
could see. 

" But the segar excites thirst and leads to intemperance. When 
the mouth is parched, you must wet the whistle ; recourse must be 
had to something to moisten it. That which was at first unneces- 
sary, and mere wantonness of indulgence, becomes a habit, and 
cannot be got rid of, but increases until the individual becomes the 
slave of tobacco, and of spirituous liquor. I never see a young per- 
son with a segar in his teeth, but I give him up, as one that wiU 
never come to much. In early life there can be no necessity for 



H. H. BRECKENRIDGE, L.L.D. 4^7 

narcotics, or use in them, as a sedative; nor is there any necessity 
for the use of stimulants, when the animal spirits are of themselves 
gay, and sufficiently volatile. These things ought all to be reserved 
for a more advanced age, if used at all, and the beginning too soon 
Vidth the use of them is unnatural and destructive. 

" The situation of the greatest danger to a young practitioner of 
law is a remote county town, where amusements are few, and a lite- 
rary society is wanting. The attending the courts is, to all, a scene 
of inducement to intemperance, it being the lawyer's harvest ; and 
as on that occasion, as with agricultural men, so on this with the 
lawyer, there is a latitude of mirth and convivial indulgence, to 
which those are the most exposed whose society, from wit or song, or 
other talent, is the most courted. There can be no profession where 
it behooves to be so much upon guard, in these respects, as the 
practitioner of the law. Intemperance of living at the county courts, 
and sitting up, perhaps at cards, ' hath cast cloivn many icoundecl ; 
many strong men have heen slain hy itj It is owing to these 
causes and circumstances, in a great degree, that so few succeed in 
the profession of the law, which, I will admit, will, in a republic, 
where the law governs, always have the first place as aii order or 
rank of menP 



CHAPTER YIII. 

JOHN BANNISTER GIBSON, L.L.D. 

BORN, NOV., 1780 — APPOINTED, JUNE, 1S16 — DIED, MAY, 1853. 

John Bannister Gibson was born on tlie eiglith day 
of November, in the year 1780; and on tbe morning 
of the third of May, 1853, as the State House clock, 
which, for more than thirty-five years, had summoned 
him to his judicial labors, struck two, he breathed his 
last, in the seventy-third year of his age, full of years 
and full of honors ; and what is better, full of faith in 
his Redeemer. He died in the embraces of an affec- 
tionate and beloved family, to whom he bequeathed, 
if no other fortune, the rich legacy of an enduring 
Fame. He was the son of Colonel George Gibson, a 
gallant soldier of the Revolution, who was killed at St. 
Clair's defeat by the Indians in 1799. 

In a letter written by Judge Gibson, a short time 



JOHN BANNISTER GIBSON, L. L. D. 4^9 

before his deatll, in answer to an inquiry in regard to 
his maternal ancestry, he furnished all the details upon 
that subject which are necessary; and we therefore 
adopt them as more reliable than those which might be 
derived from any other source. 

" My mother," says lie, " was Ann, the daughter of Francis "West, 
descended from an Irish branch of the Delaware family, possibly 
before it was ennobled. The peerage is English, and, I believe, an 
existing one. The family name is West. Her mother was a Wynne. 
Owen, the head of the family, is, or was, the first commoner in Ire- 
land. Through the Wynnes, we are connected with the Coles, Earls 
of Enniskillen. Another connexion, not perhaps so respectable, was 
the famous Colonel Barre, the intimate associate of Wilkes. My 
mother was born at Clover Hill, near Sligo, in 1746, and came to 
this country in 1754 or 1755. She died in February, 1809. I 
beheve her father had been a Trinity CoUege boy, for he spoke Latin, 
after the fashion of the day. My mother, who was certainly a well 
educated woman, directed my course of reading, and put such books 
into my hands as were proper for me. My father's collection of from 
one to two hundred volumes (among them Burke's Annual Register,) 
I read so often, that I could almost repeat pages of them yet. My 
poor mother struggled with poverty during the nineteen years she 
lived after my father's death ; and, having borne up till she saw 
me admitted to the bar, died. She certainly was a clever woman, 
but the little talent of the family came from my father's side. I 
should say genius, for he had no business talents whatever. He was 
celebrated as a humorist, and was a wit. Though without any single 
positive vice, he never could advance his fortune, except in the army, 
for- which he was peculiarly fitted." 



420 TH^ FORUM. 

Having shed as much ancestral, direct and collateral 
light upon our subject as the occasion requires, we 
return now to the topic with which we set out. 

-The opportunities for education during his youth were 
exceedmgly limited. With the preliminary aid of his 
mother, however, and the instruction afforded afterwards 
at a school house or shanty, about a mile from his home, 
on the banks of Sherman's creek, he acquired a know- 
ledge of reading, writing, and arithmetic. At this 
school he remained three years, at the charge of twenty 
shillings a year, and it is not improbable that his gene- 
ral improvement might be faMy graduated by its 
expense. After leaving the school, for some years 
his habits became sedentary^ and the advantage of 
self-instruction, and his devotion to books, so far ad- 
vanced his knowledge as to qualify him, in the year 
1797, at the age of eighteen, to enter the grammar 
school attached to Dickinson college. Here he re- 
mained two years, and made not merely rapid, but 
extraordinary, progress, astonishing not only his rivals, 
but his professors. He was of course rapidly promoted, 
and finally entered the junior class of the college in 
1800, in the twentieth year of his age. 

He was a cotemporary and rival of William Wilkins, 
of Pittsburg, afterwards so distmguished in the annals 
of this State and country, and George Bullit, a gentle- 
man of Virginia, a young man of the fii'st talents and 
attainments. It is enough to say, that, with such com- 



JOHN BANNISTER GIBSON, L. L. D. 421 

petitors, even with the disadvantage of early imperfect 
culture, he successfully, if not triumphantly, maintained 
his post. He passed with great distinction through 
the studies of the senior class, and in the early part of 
1801, without matriculating, he commenced the study 
of the law under his celebrated kinsman, the late Judge 
Duncan, and was admitted to practice after the usual 
course of reading, in the month of March, 1803, 
During his connexion with Dickinson college, (we men- 
tion this as an illustration of his attachment through 
life to medical science,) he was in the habit of fre- 
quenting the office of one of the oldest practitioners of 
medicine of that period and place, Dr. M'Coskrey, the 
father of the present Bishop M'Coskrey. Here, as 
might be supposed, he acquired a taste for the study 
of physic, which he never lost — poring, as he did, for 
days at a time, over the volumes contained in an exten- 
.sive, and systematic scientific library. 

The knowledge here derived, in after time, as we 
know, was not unfrequently put into practical applica- 
tion upon many occasions, during his official sojourn 
in various parts of the State. We have no time to 
exhibit in detail the numerous occurrences of this kind; 
but almost the very last opinion he delivered, furnishes 
a brief but sufficient instance of his attainments. We 
refer to the case of Smith agahist Cramer, pronounced 
but a little month before liis decease. It was a ques- 
tion, as to the admission of evidence, to show the 



^22 THE FORUM. 

insanity of ancestors^ for the purpose of corroborating 
other testimony, tending to establish the insanity of a 
testator.* 

" I admit the deposition witliout tesitation, notwithstanding the 
dicta of Mr. Shelford, (Treat, on Lunacy, 59,) and Mr. Chitty, 
(Med. Jurisp. 355,) that ' it is an established rule of law not to ad- 
mit proof of insanity in other members of the family in civil or 
criminal cases.' Established ! When, where, and by whom 1 Cer- 
tainly not by the House of Lords in McAdam y. Walker, 1 Dow's 
Par. Ca. 148, the only case cited for it, for the question there was 
avowedly dodged. That High Court would not shock common sense 
by afl&rming the order of the Scotch Court of Session ; nor would it 
gratuitously reverse it, when the decision could be safely put on 
another ground. The authority of a judgment appealed from, and 
left in dubio, cannot be very great. Sir Samuel Romilly's arg-u- 
ment against the evidence, was rested on the fecundity and intermi- 
nableness of collateral issues j and Mr. Chitty seems to have had a 
glimpse of the same idea, when he said the course is to confine the 
evidence to the mental state of the party. But every new fact, 
though it open a new field of inquiry, is not collateral. It may bear 
directly on the fact in contest j and, where it does so, it is not in the 
power of the Court to shut it out. A collateral issue is such as 
would be raised by allowing a party to put a question to a witness 
on cross-examination, in regard to a fact palpably unconnected with 
the cause, in order to afford an opportunity to discredit him by con- 
tradicting him 5 but does not proof of hereditary madness bear 
directly on the condition of the mind, which is the subject of inves- 
tigation ? What if the point had been ruled by the Chancellor and 
law judges in the House of Lords? Profoundly learned in the 

* 1 American Law Journal, page 353, February, 1853. 



JOHN BANNISTER GIBSON, L.L.D. 423 

maxims of the law, tliey were profoundly ignorant of tlie lights of 
physiology ; yet, free from the presumptuousness of which ignorance 
is the foster-father, they refused to rush on the decision of a ques- 
tion to which they felt themselves incompetent. IMr. Chitty fanci- 
ftdly puts the solution of questions of insanity on the doctrine of 
legal presumptions. ' As the imputation,' he says, ' is contrary to 
the natural presumption of adequate intellect, the deficit should be 
established by direct and positive evidence, and not merely be con- 
jectural or probable proof.' If that be law, a question of insanity 
is the only one in which positive evidence is required, and circum- 
stantial evidence to corroborate is rejected. Why is evidence of an 
old grudge admitted against a prisoner, as a remote proof of malice, 
if the remote proof of hereditary insanity may not be given by him 
to rebut it ; and why should the presumption of sanity be allowed 
to overbear the presumption of innocence, the strongest of them all ? 
I admit that hereditary insanity wiU not itself make out a case for 
or against a member of the family ; but to say that it may not cor- 
roborate what Mr. Chitty calls direct and positive proof, without 
defining it, staggers all belief. In a measuring cast, it ought to pre- 
vail. He says harsh conduct, bursts of passion, or displays of unna- 
tural feeling, will not, of themselves^ establish insanity. Be it so. 
But because the springs of such actions are concealed, are they never 
to be laid bare, and shown to be seated in the blood ? When it is 
admitted by Mr. Chitty and Mr. Shelford themselves, that insanity 
is a descendible quality, they give up the argument. There can be 
nothing unreasonable in referring wild, furious, and unnatural actions, 
not otherwise accounted for, to the aberrations of a mind, the reflex 
of that of a crazy father. Mr. Taylor, a distinguished lecturer on 
Medical Jurisprudence in Gruy's Hospital, London, says that, 'in 
making a diagnosis of a case of insanity, the first question put is 
commonly in reference to the present or past existence of the disor- 
der in other members of the family. There can be no doubt, from 



424 



THE FORUM. 



the concurrent testimony of many writers on insanity, that a dispo- 
sition to the disease is frequently transmitted from parent to child, 
through many generations. M. Esquirol has remarked, that this 
hereditary taint is the most common of all the causes to which in- 
sanity can be referred.' (Taylor on Med. Jurisp. 502.) M. Esqui- 
rol was, in 1838, and perhaps is still, the principal physician of the 
hospital for the insane at Charenton, in France, and a member of 
the Koyal Academy of Medicine, at Paris. His tables of insanity 
are held in high repute by not only the physicians of France, but of 
Europe. WeU might Mr. Taylor say that these things ought to be 
borne in mind by medical jurists. The knowledge attained by men, 
of a subject with which they have grappled all their lives, ought 
surely to prevail against knowledge gleaned from the hornbooks of a 
profession to which the gleaners did not belong. Strange that a 
source of information, open to every one else, should be closed to 
those who are to pass on the fact. Every man has observed that 
there are families, through which insanity has been handed down 
for generations ; and why should the probability of hereditary mad- 
ness be excluded, when probabilities in other cases are weighed; 
especially when it is known that a proclivity to theft, intemperance, 
lying, cheating, and almost all other moral vices, are as transmissi- 
ble as gout, consumption, deafness, bhndness, and almost all other 
constitutional disea,ses ? It is supposed by the nulHon that insanity 
is a disease of the mind, not of the body. Ridiculous. If it were , 
it could never be cured ; for the mind cannot take physic, or be 
separately treated ; yet the statistics of the insane exhibit a great 
number of cures ; and the time is fast coming when insanity will be 
considered the most manageable disease that flesh is heir to. 

" An objection to an inquisition, which does not disclose the spe- 
cific nature of the ancestor's infirmity, might stand in a different 
light ; but testimony, which brings the fact of madness home to him, 
ought to. be received like evidence of family likeness, which, though 



JOHN BANNISTER GIBSON, L.L. D. 425 

less reliable, was allowed to be corroborative proof of paternity in 
the Douglass Peerage Case, in 1767, and again in the Townsend 
Peerage Case, in 1843, Lord Mansfield said in the former, that he 
had always considered likeness, as an argument of a child being the 
son of a parent ; that a man may survey ten thousand people, before 
he sees two faces exactly alike, and that, in an army of a hundred 
thousand men, every man may be known from another; that if 
there should be a likeness in feature, there may be a difference in 
the voice, gesture, or other characters ; whereas family likeness runs 
generally through all of these ; for that in everything there is a re- 
semblance, as of features, voice, attitude, and action. Might he 
have not added the diathesis of the brain? He doubtless might if 
the point had been mooted. In prosecutions for bastardy, the prac- 
tice in the Quarter Sessions was, in my day, not exactly to give the 
child in evidence, but to put it before the jury, sometimes by the 
prosecutor, and sometimes by the putative father. But ancestral 
irregularity in the action of the brain is more frequently transmit- 
ted than any resemblance in form or feature ; and it is difiicult to 
imagine an objection to evidence of it, for purposes of corrobora- 
tion." 

In the year of his admission to the Bar, he, left the 
scenes of his boyhood, by the advice of his friends, and 
commenced practice at Beaver county, one of the re- 
motest parts of the State, but, in the language of 
Johnson, " Slow rises worth by poverty oppressed f 
and very soon, discontented, if not disgusted, he aban- 
doned the place of his first choice, for ever. 

Leaving Beaver, he afterwards attempted to settle 
himself at Hagerstown, Maryland, but with no better 
success; and finally returned, in 1805, to Carlisle. 

VOL. I. — 28 



^26 THE FORUM. 

There he opened his office, and for some years seemed 
to have a reasonable share of the legal practice of Cum- 
berland county, and maintamed liis ground with such 
men as Duncan, Watts, Bowie, of York, and Charles 
Smith, of Lancaster, lawyers, who, at the time of 
which we speak, had but few equals in the State. 

Notwithstanding his professional employment, how- 
ever, his versatility or eccentricity of genius, led him 
readily to engage in almost every amusement or merri- 
ment that was suggested ; and when the students of 
Dickinson college gave theatrical exhibitions at the 
United States barracks, he not only directed the stage 
arrangements, but actually painted the scenery. And 
what now (nearly fifty years after,) must strike us with 
no little surprise, a most distinguished lawyer took the 
part of prompter, and Francis Gibson, an elder bro- 
ther of the Judge, who recently died, became leader 
of the orchestra, on account of his superior knowledge 
of the violin. The times have changed, and we have 
changed with them. 

It was about this period of his professional career, 
that a friend called upon him, with the information 
that a fellow-member of the bar had grossly and wan- 
tonly assailed his (Mr. Gibson's,) character; where- 
upon, Gibson, who was a man of herculean strength 
and lofty spirit, meeting the alleged slanderer soon 
after, inflicted upon him, publicly, severe personal 
chastisement. But what was his dismay to learn. 



JOHN BANNISTER GIBSON, L.L.D. 427 

shortly after, that his informant had made a mistake 
in his report, and that another person was the calum- 
niator. To add to his perplexity, a challenge was re- 
ceived from the victim of his hasty and misdirected 
severity. " This," said Gibson, " is a bad business, 
and it is difficult to mend it; but, at least, having 
got into it, I will complete it. I shall accept the chal- 
lenge, of course ; I am bound to do so, for my folly, if 
not my fault ; but, before I am shot, I must at least 
perform an act of justice, and having now found out 
the real slanderer, I will flog him at once ;" which was 
accordingly done. Upon the matter being explained to 
the challenger, and an ample apology made, the duel, 
we are happy to say, was avoided, and the whole affair 
amicably adjusted, through the friendly interference of 
the late Judge Duncan. 

In 1810, Mr. Gibson became a member of the Penn- 
sylvania legislature, and soon after his term of service 
expired, in 1812, was appointed President Judge of 
the Court of Common Pleas, for Tioga county. On the 
eighth of October, in the same year, he was united 
in marriage to Sarah Galbraith, the daughter of a re- 
tired Revolutionary officer, a lady of no inconsiderable 
intellectual accomplishments, and of a most amiable dis- 
position. 

Upon the death of Judge Breckenridge, in 1816, 
Judge Gibson was translated to the Supreme Court 
by Governor Snyder, where, while Tilghman was the 



^28 THE FORUM. 

Nestor, lie may be said to have been the Ulysses, of 
the Bench. 

We may be here permitted to mention,, (a fact not 
generally known,) that a short time after taking his 
seat, he was sohcited by a committee from the demo- 
cratic portion of the legislature, to suffer himself to be 
put in nomination for the office of Governor of Penn- 
sylvania. This honor, however, he promptly declined, 
having determined to direct all his energies and time 
to the duties of the situation which he had assumed. 
In 1827, he succeeded the lamented Tilghman, as 
Cliief Justice of the Supreme Court of Pennsylva- 
nia, and the spotless mantle of his predecessor, as 
all shall witness, was borne by him for more than 
twenty years, if not with equal grace, with equal 
lustre. 

It would seem, that before directing our attention 
to the mind, we should bestow a passing notice upon 
the person. Judge Gibson was a man of large pro- 
portions; in height, about six feet four inches, and 
of a muscular frame. His face was full of intel- 
lect, sprightliness, and benevolence, and of coiu'se, 
eminently handsome; his manners were remarkable 
for their simplicity, warmth, frankness, and gene- 
rosity. There never was a man more free from affec- 
ta-tion or pretension of every sort. It has been said 
by one of his associates, that he was not a good 
hater ; but no man ever truly said that he was not a 



JOHN" BANNISTER GIBSON, L. L. D. 429 

good friend, and a most agreeable, convivial, and esti- 
mable companion. 

He was a deep student, but not a close student; he 
worked most effectively, but lie worked reluctantly. 
His mind was too comprehensive to admit of ready 
concentration. The veins of his learning crossed each 
other and diverted attention, but when he brought the 
lens of his mind to a focus, its power was resistless, and 
every man seemed to perceive and to feel it, but himself. 

Unlike Washington, he was not a good Nisi Prius 
Judge. In the conflicts of a jury trial, he was not a 
good listener ; he would not unfrequently be employ- 
ed in writing poetry or drawing some fancy sketch, 
when the bar supposed he was closely engaged in 
noting the course of the evidence, or preparing his 
opinion. And in rather a merry way, he once re- 
marked, that he had reached at last the object of his 
highest ambition, which was to keep his eye fixed 
upon a dull speaker, while his thoughts were employed 
with more agreeable objects. " This," he added, " is 
certainly a great judicial triumph." 

He, as has been said, liked the law as a science, but 
abhorred it in its practical and minute details. He 
never could have been an eloquent, forensic speaker ; 
but he was, if we may use the phrase, an eloquent 
thinker, and a most agreeable colloquist. He was, at 
times, a little rough; but still, even then, the benig- 
nity and pleasantness of his countenance satisfied every 



^30 THE FORUM. 

one that the harshness of his manner, sprung from no 
bitterness of the heart. 

The court was about to rise one day, the usual hour 
of adjournment having come, when a zealous young 
gentlepaan insisted upon reading a petition for a quo 
warranto. The Chief Justice expressed his unwilling- 
ness to hear it. "I have a constitutional right to 
speak," said the advocate. " That is true," said Gib- 
son, "but the constitution does not compel us to listen; 
but if you insist upon it, go on, and as Sir Toby Belch 
says, ' he curst and Irief' " 

To say nothing of hatred, he entertained no anger, 
and never seemed to imagine that he had excited 
any in others. If you would remind him of some 
occasional severity of remark, he would seem to have 
been utterly unconscious of it, and almost led you 
to suppose that the offence rather arose from your 
captiousness, than from his design. As he bore no 
grudge to others, he rendered it dif&cult for others 
to bear any towards him. Take him for all in all, 
he was a man of rare endowments, of a harmonious, 
moral and intellectual, judicial and social structure; 
and, although we may find others superior to him in 
some one great quality, in the combination of his 
talents, " he spoke unbonnetted to as proud a fortune 
as that which he had reached" — the Chief Justiceship 
of the State of Pennsylvania. 

Chief Justice Tilglmian died on the thirtieth of 



JOHN BANNISTER GIBSON, L.L.D. 43^ 

April, 1827, and on the eighteenth of the following 
month Judge Gibson was appointed to supply liis 
place. From that period, conscious of his responsi- 
bilities, and bearing in mind the high judicial stand- 
ard established by his. predecessors, he appeared to 
devote all his great powers to the fulfilment of the 
duties of his vocation ; so that, as an honorary reward 
of his distinguished abilities, he some time after re- 
ceived from the University of Pennsylvania, the degree 
of Doctor of Laws, which was soon followed by a simi- 
lar degree from the University of Cambridge. 

On the nineteenth of November, 1838, he resigned 
his commission as Chief Justice, and was at once re-ap- 
pointed by Gfovernor Ritner. The constitution of 1838, 
substituting a term of years, for life appointments, hav- 
ing been approved by the people, the commissions were 
to expire at intervals of three years, in the order of 
seniority, from first of January, 1839. By resigning. 
Judge Gibson, under this law, instead of being subject 
to the shortest term — three years — would hold the 
longest — fifteen years. " The proposal," sa^^s Mr. Por- 
ter, " seems to have been made by his associates and 
accepted by Mr. Gibson, with slight consideration."* 
We should think so ; for there certainly never was a 
more injudicious step among judicious and judicial men! 
It injuriously affected the whole court, and no reasoning 
can excuse, much less justify it. 

■ * William A. Porter's Essay upon the Life, Character, and Writings 
of Chief Justice Gibson, page 53. ■ 



432 THE FORUM. 

Judge Gibson, if lie were not guilty of a fault, cer- 
tainly committed a great mistake in this resignation ; 
or rather, in accepting a renewed appointment. He 
never could satisfy any one, nor do we think he ever 
satisfied himself — when he came to reflect — of the pro- 
priety of the com'se thus adopted. It was perfectly 
useless for him to say, that when he resigned, there 
was no understanding that he should be re-appointed. 
The object clearly was to prolong his term of office; 
otherwise, having resigned, why did he accept the re- 
newed appointment to the same post ? Nay, liis very 
statement, that at his time of life and with his means, 
his condition would have been that of " penury and 
want," shows that the resignation was not intended, 
but had for its object a longer continuance in office. 

The reference to the acquiescence of the other judges 
in the measure adopted by him, implies also, that his 
object was to remain on the bench; and shows, plainly, 
that he gave up the post, that it might be restored with 
greater advantages — advantages, too, at the expense 
of his associates. The act itself was wrong, and the 
reasons assigned for it make it worse, as they show a . 
consciousness of the very error which they attempt to 
palHate. 

From the moment of the unhappy surrender of his 
own sense of right, Judge Gibson never was the man 
he had previously been — he was humbled, by the per- 
petual consciousness that he had acted indiscreetly, 



JOHN BANNISTER GIBSON, L. L. D. 433 

and placed his liigh character in jeopardy or doubt. 
His companions on the bench, though too generous to 
show it — and however regardless of their personal in- 
terests — felt that the integrity of the tribunal was 
compromised ; and the public at large looked upon this 
judicial strategy with surprise and evident disapproval. 

It is hard, to be sure, as we have elsewhere said, 
to relinquish office and the hopes of life together; 
but it is because it is hard, that it is sometimes mag- 
nanimous. "'Tis the rough brake that virtue must 
go through." No one can doubt our high regard for 
the Chief Justice, but that regard rests upon his 
virtues — not upon his defects ; and all commendation 
of the former, would be fulsome flattery, if we did not 
condemn the latter. This w^as but a spot, the only 
spot upon his escutcheon ; but it was an odious spot, 
and to attempt to excuse it, would be to recommend 
it to judicial favor and imitation. Place it on the 
ground of a solitary indiscretion, and the influence of 
unhappy circumstances, if you will, but never attempt 
to justify for him, what, with his great head and excel- 
lent heart, he was unable to justify to himself. 

The public, out of regard for his great services, dealt 
liberally with him;* they overlooked this single in- 

* Almost tlie only reference we ever lieard made to this matter, was its 
liaving been once said, in no unkind spirit, tliat just after the Chief Justice's 
resignation he attended the Episcopal church, of this city, when the cler- 
gyman took for his text, 2 Kings, twentieth chapter and sixth verse : — 
" I will add unto thy days, fifteen years." 



^34 THE FORUM. 

firmity — they never cast it in his teeth while hving, 
nor upon his memory when dead. Let it then die for- 
ever — or, at all events, not be revived to be excused. 

Judge Gibson would have been a great physician, a 
great general, a great historical painter, an eminent 
professor of music,* but he never could have been a 

* Judge Gibson, as an amateur musician, was perhaps unequalled in 
tlie United States. He was a perfect devotee to the violin, to which he 
always resorted as a relief from the severity of his judicial toils. This 
habit led, though very remotely, to no inconsiderable exposure and em- 
barrassment. The way of It was this : — 

When, as Chief Justice, presiding at a Superior Court at Willlamsport, 
he one morning entered the bar room of his hotel, and, observing a violin 
lying there, he picked it up, and drew from it, as usual, some exquisite 
strains of harmony. A gentleman who was present, however, reminding 
him that it was the Sabbath-day, he immediately relinquished the instru- 
ment, and apologized for his forgetfulness. A short time after this the 
story got wind, and a political adversary of his, who conducted a news- 
paper, published a highly-colored account of the occurrence, very much 
to the annoyance of the Chief Justice. Indeed, so much did he feel him- 
self aggrieved, that. Instead of treating the matter with Indifference or 
contempt, he came out in a rival journal with an explanation of the 
whole affair, excusing himself for an apparent infraction of the Sabbath, 
by alleging that he had forgotten the day. It so happened that, some 
years after this, one of his associates was brought before a committee of 
the Legislature upon a charge of incompetency, on the ground of Inferi- 
ority of judgment and want of memory. 

The Chief Justice was subpoenaed before the committee to give testi- 
mony ; and, though very reluctantly, he gave evidence calculated to sup- 
port the charges. He was then handed over to the respondent, who 
conducted his own defence, for cross-examination, when the following 
mortifying, though somewhat ludicrous, dialogue took place : — 

Associate. — " You say, sir, that you consider my memory defective ?"' 



JOHN BANNISTER GIBSON, L.L.D. 435 

distinguislied attorney. He had a detestation of minute 
labors, and complicated or diversified details. Give him 
the question, and no man could grasp it more firmly, or 
dispose of it more readily, or divest it more clearly 
of the fallacious reasoning by which it was attempted 
to be assailed or supported, but he would not descend 
into details. He dehghted in ratiocination, but ab- 
horred the laborious detail of heterogeneous facts, 
which too often tend to bewilder and confound rather 
than to enlighten and direct the mind. Among emi- 
nent painters and sculptors, the ascription of merit is 

Chief Justice. — "I have said so, and I regret to ttink so." 

Associate. — "Did you ever know me upon any occasion to forget the 
Lord's holy day— the Sabbath ?" 

Chief Justice. — " I have no such recollection." 

Associate. — "You have stated that you consider my judgment im- 
paired?" 

Chief Justice. — " Such is my belief, and I have had some opportunities 
of knowing." 

Associate. — " Pray, sir, did you ever know me to be guilty of the weak- 
ness iand folly of answering a paragraph in an obscure country news- 
paper, charging me with playing the fiddle on Sunday, and to put my 
defence against the charge — upon the ground of my having forgotten 
the day?" 

This was, of course, unanswerable. The Associate triumphed, and all 
further proceedings were abandoned. There are emergencies in life 
which, even when the human faculties are almost extinct, seem to recall 
them in their pristine vigor, and this was one of them. We have heard 
it said, that the Associate referred to, had never been known, in his 
best days, to manifest greater ability than in the management of his own 
cause upon this memoral}le occasion. 



436 THE FORUM. 

regulated by the difference between those who resort 
to mmor details, and those whose genius generalizes 
the workj and thereby produces the desired effect upon 
the beholder. The latter always holding the most dis- 
tinguished position. Composition, as it is called and 
subordination, being the loftiest branches of the ^rts, 
since they manifest most mind; and mind i7i every- 
thing, is everything. 

In liis social intercourse he had this remarkable 
quality, in which he strongly resembled Alexander 
Hamilton. He rarely spoke on the subject of law. 
Poetry, music, and painting were his themes, and his 
great delight ; and for a good joke, or an agreeable and 
harmless story, very often at his own expense, (traits 
which he probably derived from his father,) no man 
was his superior. He used to relate, with injEinite 
humor, his first adventure in professional life : — 

"I was/' said he^ "brouglit up like a young savage, in leaping, 
hunting, boxing, and all other athletic employment. Study scarcely 
sobered me. At length, in 1803, after having been struggling 
with adversity for years, I was admitted to practice, and deter- 
mined to make my commencement as far from the scene of my 
early folly or faults as possible. I, therefore, at the instance of 
Mr. Wilkins, made choice of Beaver county, on the river Ohio. 
By hard scuffling, I succeeded in purchasing a small horse or cob, 
some fourteen hands high ; and having taken leave of my fond 
mother and my friends, I accordingly set out in search of profes- 
sional adventures, with scanty purse and saddle-bags, and an empty 
green bag. Not like Dr. Syntax, in search of the picturestpe, but 



JOHN BANNISTER GIBSON, L.L.D. 437 

like a poor lawyer, in pursuit of a brief. Some sliort distance 
from Beaver, I was particularly struck with the ridiculous appear- 
ance made by myself and horse ; the animal, as I have said, was 
too short, and I was too long; my feet nearly reached the ground. 
Added to this, the character of my equestrian equipment was by 
no means calculated to relieve me from my embarrassment. Just 
in the midst of this quandary, I heard rapidly approaching from 
behind, a horseman, who was almost immediately by my side ; and 
with the femiliarity of the times and place, he saluted me with, 
^Well, stranger, would you like to swop horses?' Before answer- 
ing, I took a glance at his animal, which appeared to be some 
seventeen hands high, and though rather raw-boned, much better 
adapted to my size than the horse I rode. Suffice it to say, that 
after a little chaifering, the swop was made, and I paid five dollars 
to boot ; the trappings were removed, and every thing being ad- 
justed, the Yankee mounted, and it appeared to me, that he at 
once infused new life into my beast, for he set off in a gait that he 
had been utterly unused to. Rider and horse were soon out of 
sight, and mounting my new purchase, I could not but perceive 
that he seemed all at once, to have Jost as much alacrity as the 
other had gained. However, as I have said, I mounted him, but 
had not proceeded a hundred yards, before he fell flat upon his 
nose and threw me over his head. This led, of course, into an 
examination of his condition, upon which I found that the horse 
was actually stone blind. I was lawyer enough, even then, to know 
that as this was a patent defect that I was bound to look to, and as 
I was not blind, the blindness of the liorse gave me no right of 
action, even if I could have found the defendant ; so I pocketed 
the loss, and the Yankee pocketed my five dollars, and rode ofi" 
with my horse. This was my first adventure, and from such an 
ominous beginning, it is hardly to be supposed that my career in 
Beaver — which, thank heaven, was but short — was very prosper- 
ous. I gained experience, however, if not in swopping horses, in 



438 'fS^ FORUM. 

avoiding it ; and in future I looked at the eyes, as -well as the size, 
of a horse ; in other words, to alter the lines of a poet — ' I rate no 
horse's merit from his size.' " 



The late Chief Justice was not what would be called 
a refined modern gentleman ; that is, a man in whom 
the arts of society had suspended, if not extinguished, 
the charms of nature. With sufficient amenity and 
courtesy, his great value consisted in the generous 
outbursts of the heart, in defiance of those conven- 
tional restraints which station and official position 
would seem to impose upon ordinary men. He was 
sincere, but never ostentatious. He adopted, in the 
exercise of his charitable feeling, the divine injunction, 
" Let not thy left hand know what thy right doeth." 
No man ever heard him speak of his own virtues, and 
no one ever heard him deny the virtues of others. If 
you will visit an obscm^e burial-place in the town of 
Harrisburg, you will there find a plain, but tasteful 
monument, with this inscription : " To Joseph Jeffer- 
son, the comedian. ^AJas, poor Yorick ! I knew him 
well ; he was a fellow of infinite humor.' " That tomb 
was erected to the memory of our old friend Jeffer- 
son; and the inscription fui-nished from Hamlet, by 
the Chief Justice of Pennsylvania. 

A portrait of the late Judge Kennedy, one of the 
Associates of the Supreme Court, was presented to 
the Court by an artist of considerable ability. It 



JOHN BANNISTER GIBSON, L.L.D. 439 

remained in the court room for some years, not even 
graced with the compliment of a frame, though abun- 
dantly festooned with cob-webs. A short time before 
his death, however, Judge Gibson caused it to be 
refreshed and beautifully framed, and presented it to 
the only surviving daughter of the deceased Judge, 
in a manner so aifectionate and delicate, as largely to 
enhance the value of the gift. These simple touches 
of nature are, it is true, but small matters in them- 
selves ; but they still speak for the heart, and from 
their rarity, become great in great men. 

If there be any vktue that vouches for all other 
virtues, it is charity ; therefore, to say of such a man 
that he was an affectionate husband, devoted father, a 
tender relative, and a fast friend, is to say no more 
than all that are capable of appreciating his character, 
wiU readily concede. He was indeed the very heart of 
his domestic and family circle. No circumstance could 
weaken, and no time could cool, the strength and fervor 
of his attachment; and if we were permitted to trench 
upon his last moments, we may well believe that, next 
to the consolation of his God, his chief happiness was 
in dying as he lived, smTOunded by those he loved. 

A short time before his decease, after speaking with 
grateful affection of the kindness and attentions of his 
brethren of the bench, and his friends generally, while 
surrounded by his sorrowing family, he turned to them 
and said, '•'■\feel that I am approaching the great Audit, 



440 T2^ FORUM. 

and I know that, as a sinner, I stand in need of an ad- 
vocate. Send for a clergyman." To that just and 
merciful Audit lie calmly and faithfully resigned him- 
self, in full reliance, not upon his own merits, but upon 
the redeeming influence of a Saviour's love. 

We cannot do better, in taking leave of our lamented 
subject, than to present to our readers a passage from 
the address of his successor in offi.ce. Chief Justice 
Black, in announcing to the Supreme Court the be- 
reavement they had sustained by his death : — 

'' Judge Gibson was well appreciated by bis fellow-citizens ; not 
so highly as be deserved, for tbat was scarcely possible ; but admi- 
ration of bis talents and respect for bis bonesty were universal 
sentiments. Tbis was strikingly exhibited when be was elected 
in 1851, notwithstanding his advanced age, without partisan con- 
nections, with no emphatic political standing, and without man- 
ners, habits, or associations calculated to make him popular beyond 
the circle that knew him intimately. With all these disadvan- 
tages, it is said he narrowly escaped what might have been a dan- 
gerous distinction — a nomination on each of the opposing tickets. 
Abroad, he has for very many years been thought the great gloiy 
of his native State. Doubtless, the whole commonwealth will 
mourn bis death. We all have good reason to do so. The pro- 
fession of the law has lost the ablest of its teachers, this court the 
brightest of its ornaments, and the people the steadfast defender 
of their rights, so far as they were capable of being protected by 
judicial authority." 



CHAPTEE IX. 

GALLERY OF PORTRAITS. 
THE BAR. 

Having recalled some of the lineaments of tliose 
illustrious j^ersonages who adorned the judgment seat of 
the State and the Union, and presented them, through 
their virtues, as models for the present generation, let 
us now introduce a class of men, belonging to the same 
professional family, not less eminent in their appro- 
priate department ; and reflecting as much hght upon 
the judges, as they ever derived /rom them. We refer, 
of course, to the members of the bar — a body of men 
who have done as much for the permanency and glory 
of this republic, as ever was done by the heroes of the 
revolution, for the achievement of its liberty. 

Cicero, in his speech for Murena, contrasts the qua- 
lities of a civilian with those of a soldier, and attempts 
to show that martial is superior to legal reputation; 

VOL. I. — 29 



^42 THE FORUM. 

but we are informed by equal authority, that, in a free 
State, the advocates are always those who have most 
power and ascendancy. Nor is this wonderful ; for, in 
the language of the civil law, " armed warriors, whose 
weapon is the sword, are not the only soldiers of the 
empire. Advocates, too, fought for imperial Rome, 
when they exerted the glorious gift of eloquence in 
supporting her government ; in defending the hves, and 
fame, and fortunes of their fellow-citizens ; in uphold- 
ing the cause of the poor and needy, and in helping 
them to right, who suffered wrong." 

" Sallust," says Judge Breckenridge, " has made it a 
question, which requires the greatest talents — the task 
of a general or that of a historian? That may be 
made a question, yet I consider the task of the histo- 
rian as far behind that of the orator. I can conceive of 
nothing approaching nearer the power of an angel than 
the management of an argument with the human mind, 
requiring an intuitive knowledge of the heart, to dis- 
tinguish what can persuade — those resources of argu- 
ment which can lead the understanding — that presence 
of mind, wliich gives command of language, and which, 
from sober reasoning, can ascend to the regions of ima- 
gination, descending and remounting as occasion may 
require. 

" Great generalship requires great judgment, but not 
more than a game of chess. An equal judgment and 
presence of mind are required in the orator. The sur- 



THE BAR. 443 

prise of sudden emergencies calls for the talents of a 
commander, but not less talents are displayed, where, 
in the course of a trial, the evidence takes a sudden 
turn, and the front of your defence or attack must he 
changed. A trial is the image of a field of battle. 
But to presence of mind and judgment, the faculty of 
eloquence must be superadded ; that wonderful arrange- 
ment of ideas that must appear almost miraculous. An 
able lawyer could not but make a great general, but it 
does not follow that an able general would make a great 
lawyer ; for the province is more extensive and the 
task greater. A few campaigns will form a general, but 
the able lawyer is the work of years ; viginti annorum 
lucuhrationesr 

What is the pride, pomp, and circumstance of war, 
compared with the stOl and mental parts of man, when 
they engage in conflict. When mind meets mind, then 
comes the tus;: of war. It is the conflict of the im- 
mortal powers of our nature — angel against angel. 

But leaving the comparison to be carried out, and the 
result determined by impartial arbiters, let us present, 
in a brief and cursory way, some of the practical claims 
to victory, which are preferred in behalf of the profes- 
sion of our choice. 



444 THE FORUM. 

WILLIAM LEWIS, L. L. D. 

BORN, 1750— DIED, AUGUST, 1819. 

It must not be expected that I should enter into 
the professional history and position of every member 
of the bar, nor must the omission to do so, be con- 
strued as a disparagement to those not specially noticed. 
There are many young men, now commencing their 
forensic career, who, in all human probability, will 
reach as high a round on the ladder of professional 
fame, as those who, bein'g much older, are of course 
more prominent, and are therefore designated as exam- 
ples of what talent and industry may accomplish, and 
as inducements to those more youthful, to persevere in 
their arduous course, in order that tliey, in their turn, 
may enlighten and encom^age others, by whom iliey 
may be followed, in reaching the lofty pinnacle of 
FORENSIC fame. 

Taken as a whole, there is no body of men in 
the United States — perhaps it may be said, in the 
world — who have exhibited more moral grandeur 
and unswerving integrity, than the members of the 
bar. Certainly none have displayed more patriotism, 
public spirit, intelligence and controlling influence, in 
the creation, administration, and preservation of the 
admh'able system of government in which they have 
had the happiness to live. This remark is applica- 



WILLIAM LEWIS, L.L.D. 445 

ble, if not equally applicable, to almost every member 
of the legal profession. Their devotion to the country ; 
their energy, their charity, their liberahty, and their 
fidelity, if equalled, have certainly never been sur- 
passed, by any other class of our fellow citizens. And 
when it is remembered that they have more power, 
that they have perhaps fewer restraints, that they 
embrace a much wider and more important sphere of 
action — that to them is often confided the property, 
the lives, the liberty, the character, and hopes of 
thousands ; when, in short, they stand as shining and 
peculiar lights in every community, it is certainly 
wonderful that so few spots should be detected upon 
the disk of their fair fame. While centuries have 
rolled over this glorious profession, and embraced but 
one Jeffries, one Scroggs, and one Norbury; the pages 
of time are redolent with the fame of such men as 
Gascoyne, Hale, Somers, Foster, Hardwicke, Wilmot, 
Mansfield, Marshall, Washington, Tilghman, and others 
of the same constellation, Avho shed an undying lustre 
upon themselves, their country, and the world. 

Among the first class of those who flourished in Phila- 
delphia, fifty— and more than fifty — years ago, and who 
stood pre-eminent not only in this State, but in the na- 
tion, and who succeeded to our Wilsons, our Shippens, 
our Dickensons, and our Hamiltons ; all of whom had 
passed to "that bourne whence no traveller returns," 
though still gilding the horizon of life with the beams of 



^46 THE FORUM. 

their departed glory — were Lewis, Rawle, Ingersoll, 
Tilghman, Dallas, Hopkinson, Jonathan Dickenson Ser- 
geant, Reed and Bradford. All of whom, except the 
last three named, were personally, and some intimately, 
known to me; that is to say, as distinguished men 
might he supposed to he known, to a comparative hoy. 

The office in which I read law, (that of the late William 
Rawle,) necessarily brought me into subordinate inter- 
course with these eminent men, and my almost perpetual 
attendance at court, from the age of fifteen until their 
respective deaths, supplied the opportunity of noting 
their brilliant career, and of admiring, and endeavoring 
humbly to imitate, their relative talents and lofty virtue. 

They all differed, and yet they may be said to have 
been all equal. The superior address of one, was made 
up to others, by superior strength; the more dis- 
tinguished eloquence of some, by the deeper legal 
learning of others; some figured most before the com^t 
in banc; some were omnipotent with a jury; some 
exhibited greater skill in land cases, and some in mer- 
ca,ntile, and others in what may be called personal 
actions ; and still others in the higher order of crimi- 
nal, or crown law; while some combined all, though 
each in an inferior degree ; but by being second only 
in every department, ranked with the first hi the re- 
spective branches, of jurisprudence. 

Lewis, our present subject, was, for the most part, 
a self-taught man, but of great natural power and ca- 



WILLIAM LEWIS, L.L.D. 447 

pacity. It is said, that he was originally, a hoy in an 
humble position, upon a farm in an adjoining county, and 
that having, some years before the Revolutionary war, 
driven a load of hay into the city, he dropped into the 
court, at that time in session, and became so enamoured 
with the arguments of counsel, that he at once re- 
solved to throw off his rur^l gaberdine, and assume the 
toga virilis. 

Having thus determined on his future career, he 
shortly after entered the office of Nicholas Wain,* an 
eminent barrister, of some eighty years ago, rather as 
an attendant, than as a regular student; and contin- 
ued there for some four or five years, employing those 
hours not occupied by other service, in the most sedu- 
lous and zealous devotion to the acquisition of a know- 
ledge of the law. 

It is related of him, and no doubt truly, that as 
he came last into the office, and as his condition 
was comparatively humble, the young gentlemen stu- 
dents, (many of whom afterward obtained deserved 
distinction,) occasionally took the liberty of subject- 
ing him to menial services, such as sending him on 
errands, and deputing him to do what properly be- 

* Mr. Duponceau, in a publication of his, (he having been a student 
of Mr. Lewis,) states, that " Mr. Lewis read law with George Ross." 
This has never been my understanding, and at the time of the burial of 
Mr. Wain, in my presence,^ Mr. Lewis said to Mr. Rawle, " I am going 
now, impressed with mingled gratitude and grief, to follow my old mas- 
ter, Nicholas Wain, to the narrow house appointed for all living." 



^^g THE FORUM. 

longed to themselves. On one of these occasions, 
when he was directed to bring some water, to carry 
their letters, or something of the sort, he peremp- 
torily refused, and upon the return of their precep- 
tor to the office, a formal complaint was preferred 
against the offender. "Well," said Mr. Wain, "it is 
true, WiUiam has hut little education, and holds but 
an humble station, but he has still some rights, and it 
seems to me that the best mode of graduating men, is 
to test them by the standard of knowledge, and that 
the man who knows least, should serve the others. 
Now, I will examine you all, and if William knows 
less than the rest of you, he shall serve you." Ac- 
cordingly the examination took place, and to the sur- 
prise of all, he proved to be, notwithstanding " all the 
bars against him," the best read student in the of&ce. 
Thus ended the controversy on the score of precedency 
and authority. 

His probation passed, it need hardly be said that 
he was admitted, after a most satisfactory examina- 
tion, on the fourth of September, 1773, a member of 
the Philadelphia bar, where he held his post amongst 
the proudest of his competitors until his death, which 
occurred on the fifteenth day of August, in the year 
1819, in the sixty-ninth year of his age. 

Mr. Lewis's career was a manifestation of the aristo- 
cracy of mind. His powers of reasoning were of the 
highest order. During his whole life, his energy and 



WILLIAM LEWIS, L.L.D. 449 

perspicuity were unabated ; and in his last speech, like 
a dying taper, he emitted some of his brightest flashes 
just before expiring. His manner of speech was rough 
but most powerful; his voice somewhat harsh, but 
loud and clear, and clarion-like ; it had but few modu- 
lations, but from its sonorousness, it could be heard 
and understood at a great distance. 

A most remarkable matter connected with Mr. LoAvis 
was, that he spoke the English language with extraor- 
dinary purity, notwithstanding his early associations 
and habits, which always exercise so great an influ- 
ence upon the eloquence and literature of after life, 
had been such, as to debar him of those advantages 
which are so essential to advancement in professional 
and pubhc life. No other man at the Philadelphia 
bar, with his opportunities, or, rather, with his want 
of opportunities, has ever equalled him as a foren- 
sic speaker, and yet but few of his speeches have 
been reported. Whether he resembled Mr. Pinck- 
ney, in refusing publication, on the ground that rumor 
was better than print, we cannot say. Perhaps there 
is another reason. It is much to be regretted that 
phonography was unknown during his time ; and Mr. 
Thomas Lloyd, an aged and imperfect stenographer, 
was almost the only reporter, and by no means very 
accurate. 

Lewis had but little flexibility of feature, and not much 
pathos ; but he nevertheless often roused the feelings, 



^50 THE FORUM. 

and always commanded undivided attention. His was 
the " cmreum flumen orationes" in an extraordinary de- 
gree. His wit was keen but rough, and in sarcasm he 
had no equal. Conscious of liis own strength, he used 
it unsparingly, and sometimes without mercy, to those 
hy whom he was opi^osed. 

I remember one instance, especially, out of many 
that I have witnessed, which left a lasting impression 
upon my memory — the last criminal case in which 
I ever knew him to appear. It was an indictment 
found upon a charge made by the Bank of North 
America against an individual who had counterfeited 
and passed the notes of that institution to a very large 
amount. Mr. Lewis appeared for the prosecution; 
and a very distinguished, thorough-paced criminal law- 
yer, (though not blessed with very frank or prepos- 
sessing features,) represented the defence. The evi- 
dence against the prisoner was clear, if not entkely 
conclusive ; and his counsel found it necessary, inas- 
much as his client was a man of considerable personal 
attraction, and of a placid and interesting face, to rest 
a portion of his argument upon liis appearance. " Do 
you think, gentlemen of the jury," said he, in conclu- 
sion, having dwelt for some time upon the enormity of 
the crime of forgery, " do you think that such a man 
could be capable of perpetrating such an offence ? Can 
you suppose that so calm and fair a countenance could 
mantle over so false and foul a heart ?" Mr. Lewis 



WILLIAM LEWIS, L. L. D. ' 451 

then rose in reply, and I recollect his exordium as 
though it had been uttered yesterday : — 

" For twenty years, gentlemen of the jury/' said he, " I have 
retired from the agitation and tumults of criminal practice, but 
for much more than twenty years I have been the counsel for the 
Bank of North America. They took me by the hand when a com- 
paratively young man, and when I stood in need of friends ; they 
have applied to me now, under the idea that my humble services 
may be useful ; and gratitude forbids me to withhold those ser- 
vices. I am entirely at their command. Thus far for myself, now 
for the case. The prisoner's counsel has placed his defence mainly 
upon his countenance. What does such a reliance result in ? If 
a good countenance is to pass for an acquittal, a bad countenance 
must pass for a condemnation ; doctrine that you will at once ab- 
jure, and which sympathy for my learned antagonist forbids me to 
allow, for, in that case, he himself wotild stand a wretchedly poor 
chance." 

This is not given as a specimen of the eloquence of 
Mr. Lewis, but as exhibiting his occasional severity, a 
severity in the exercise of which the manner was, if 
possible, more withering and insufferable than the 
matter. His sarcasm or rebuke was seldom accompa- 
nied by a smile, unless it were a smile of derision or 
contempt. In this respect, he differed widely from 
his more generous and pohshed cotemporaries — Jared 
IngersoU, WilKam E-awle, and Alexander James Dallas, 
all of whom were remarkable for their personal dignity 
and professional courtesy and decorum. 

Though he was most distinguished in the higher order 



452 THE FORUM. 

of crown cases, as they were then called, he was always 
at home at the bar, or elsewhere, in every discussion in 
which he engaged. He was a proficient in commercial 
l*w, and he was particularly disposed to exhibit his 
knowledge before those who professed to be most fami- 
liar with its principles, usages, and customs. The late 
Robert Wain, a thorough-bred merchant, on hearing 
Lewis discuss the commercial relations between this 
country and Europe, at a dinner at which they were 
both guests, observed to the party assembled, "that Mr. 
Lewis seemed as familiar with commercial affairs as if 
he had been the head of a counting-house all liis life." 
" Let me tell you, sir," said Lewis, " that a competent 
lawyer knows everything that a merchant does, and a 
great deal moreT 

Like most men who liaA^e, by force of their own 
innate genius, "got start of the majestic world," he 
was somewhat overbearing and opinionative, and in 
the consciousness of his own great powers, made 
but little allowance for the comparative feebleness of 
others. In his victories, he granted no quarters to the 
vanquished. For some time after the admission of 
the elder Dallas to the bar, he threw discouragements 
in his way, and at times manifested so much vindic- 
tiveness towards him, as at last to result in an open 
rupture, which was, however, reconciled by the inter- 
ference of their mutual friends, and ever afterwards 
there remained entire harmony between them. 



WILLIAM LEWIS, L.L.D. 453 

For much of liis life, his business was very exten- 
sive at the bar ; and it is not a little remarkable that, 
although his early education was the most shallow 
and imperfect, he had cultivated such an acquaintance 
with the best authors, and bestowed so much attention 
upon language, that he became one of the most classical 
speakers at the bar ; and upon subjects of philology 
and logic, he was particularly expert. 

His eloquence resembled more that of Demosthe- 
nes than Cicero — it was a torrent, and not a gentle 
and translucent stream. It broke down, instead of 
undermining opposition, and often terrified rather than 
persuaded the jury into a verdict. He spoke as a mas- 
ter everywhere, and, although he often manifested a 
want of judgment, perhaps, in selectmg or arranging 
his points; overlooking those that were strong, and 
relymg on those comparatively weak, he never left 
those weak points without converting them into strong 
ones, and leaving the minds of his hearers in doubt, 
whether Ms judgment or their own was in error. There 
were some early instances of that occasional want of 
perspicacity and judgment to which I have referred, 
one of which he used to relate himself. 

Towards the end of the last century, he was en- 
gaged in a case of great importance m point of prin- 
ciple, and upon the result of which a vast amount of 
property depended. He bestowed upon his prepara- 
tion weeks and months of his time. The argument 



4.54 THE FORUM. 

was to be liearcl before the Court in New York ; and, 
as he was to be opposed to Chancellor Kent, Am- 
brose Spencer, and other eminent members of that bar, 
he was induced, from considerations of fame as much 
as money, to leave no effort unemployed. 

" ' Well/ said he, ' I thoiiglit no man could be better prepared, 
and no man could have a better cause. My points and my argu- 
ment, as I had arranged them, appeared to be unanswerable ; and, 
assured of success, on the day before that fixed for the hearing, I 
arrived in New York. Next morning, at eleven o'clock, the argu- 
ment was to commence. 

" About an hour before the opening of the court, I was called upon 
by Alexander Hamilton, who informed me that Mr. Kent was in- 
disposed, and Mr. Spencer absent, and in this emergency he (Mr. 
Hamilton) had just been retained, but that he had little knowledge 
of the case and no means of obtaining it. ' In these circumstances,' 
said the great little man, 'would you have any objection to giving 
me a sketch or foreshadowing of your views, in order that I may 
turn the matter over in my mind, and at least know something of 
what I am compelled to discuss.' ' By all means,' said I, consider- 
ing my claims infallible, and telling him so; and I proceeded 
briefly to state the history of the case, the points of my argument, 
and the authorities by which they were sustained. He thanked 
me, left me, and in an hour afterwards we met again in court, 
and the argument at once proceeded. I spoke for several hours. 
The judges seemed to be convinced, and I was perfectly satisfied 
with the cause and myself. During the argument, Mr. Hamilton 
took no notes, sometimes fixed his penetrating eye upon me, and 
sometimes walked the chamber, apparently deeply interested, but 
exhibiting no anxiety. When I had finished, he immediately 
took the floor, and commenced his reply. What was my amaze- 



WILLIAM LEWIS, L.L.D. 455 

ment when, in his first sentence, lie acknowledged all my points, 
and denied none of my authorities, but assumed a position which 
had never entered my mind ; to the support of which, directing all 
his great powers, in one fourth the time employed by me, he not 
only satisfied the court, but convinced me that I was utterly wrong. 
In short, after all my toil, and time, and confidence, I was beaten — 
shamefully beaten." 

Witli all his eminence, Mr. Lewis was a careless man, 
negligent of his papers, negligent of his dress, indiffer- 
ent to the comforts and cleanliness of his of&ce, min- 
gling very little in social intercourse, and usually, in 
the close of his career, bestowing but scanty attention 
upon the preparation of his cases. Indeed, he never was 
an industrious and systematic man ; if he had been, (said 
Mr. Rawle,) few lawyers could have compared with him. 

Some years before his death he retired to his coun- 
try seat, near the falls of Schuylkill, and seldom vis- 
ited the city. There he died, on the fifteenth of Au- 
gust, 1819, and. was buried in the burial ground of 
the Friends' Society, of which society he was a pro- 
fessed member. 

Mr. Lewis was la man of six feet high. In his 
advanced age, he had a sHght stoop in the shoulders, 
which, however, he lost in the animation of discussion, 
when he seemed to stretch his frame to its utmost 
limit.'^ He used but one gesture, which was that of 

* There is an excellent, though not highly finished, portrait of him, in 
oil colors, in the Law Library, painted in early life by Mr. Jolin Nagle, 
while a pnpil of the late Gilbert Stewart. It is a copy of a portrait by 



456 



THE FORUM. 



raising his right arm almost perpendicularly, and as 
though in the act of throwing a tomahawk, and some- 
times bringing it down with great violence upon the 
desk. His appearance, when in the full excitement 
of a speech, was such as not only to enhst the court 
and jury, but the entire audience. It stkred men's 
blood, and caused the hair to stand on end. 

I remember, in very early life, to have heard his cotem- 
poraries and compeers say, that, upon one occasion, when 
he was engaged in a very important forensic struggle, 
during the time when Philadelphia was the seat of the 
federal government, a deputation of Indians, then upon 
a visit to President Washington, was introduced into 
the court room, with their interpreter, and while there, 
listened with great apparent attention to the argument 
of Mr. Lewis. My informant, stepping up to the in- 
terpreter, requested him to ask his savage companions 
what they thought of the speaker, to which the imme- 
diate reply was, ^^He is a great loarriorr This serves 
to convey some idea of his action and energy in debate, 
from the effect produced upon these children of the 
forest ; but it had very little foundation in point of 
truth, for, perhaps, courage was the least remarkable 
of the qualities of this great man. 

Mr. Lewis was a steadfast friend and a generous 

Stewart, and gave an early but bright promise of Nagle's present emi- 
nence. This portrait was presented to the Law Library Company, by 
the late Joseph Head, Esq. 



WILLIAM LEWIS, L.L.D. 457 

enemy. He was faitliful to his clients when convinced 
they were right, but he did not consider himself bound 
to them, " right or wrong." 

As an instance of this, having been engaged by an 
influential citizen to defend him in a case of consider- 
able magnitude, in the coiu^se of the trial it became 
apparent that the chent had grossly misrepresented 
the case, and had in fact been guilty of a gross fraud ; 
whereupon Lewis threw up his brief, and when called 
upon to speak for the defendant, he promptly dechned. 
" Will you not speak ?" said the client. "No, sii f said 
the counsel. "What, then," said the suitor, "have I 
paid you for?" "You have paid me," replied the indig- 
nant advocate, "that you might have justice done, 
and justice will now be done, without my further inter- 
ference." 

With all his masterly powers, toward the latter part 
of his career his carelessness and negligence increased. 
I remember to have heard one of the most distinguished 
of his friends say, that it seemed almost impossible for 
Mr. Lewis ever to find a paper that had been left with 
him, and that, too, even at a period when he was engaged 
in every important cause, and his voice daily heard in 
every court. From my knowledge of his office, I think 
that readily accounted for. His table and desk gene- 
rally exhibited a huge and confused mass of docu- 
ments, all apparently thrown heterogeneously together, 
and so covered with dust, and redolent of tobacco 

VOL. I. — 30 



^gg THE FORUM. 

smoke, that it might be thought theii' repose had not 
heen disturbed for months. The other portions of the 
office showed equal indifference to cleanliness and order, 
so much so as to induce me, upon returning from one of 
my calls, to remark, in a playful way, that no one 
could visit Mr. Lewis's office without committing a lar- 
ceny; as he not only brought away his own coat, but 
a coat of dust besides. 

The condition of his office, as thus described, how- 
ever, was not so remarkable then as it would be now. 
It was, to be sure, much worse than most of those of 
men of his rank, but none of the offices of that day 
were — on the score of cleanliness, order and comfort — 
to be compared to those of the last quarter of a cen- 
tury : papers, of course, especially those of a remote 
date, were often lost or mislaid, and woe to the un- 
happy student, whose fate it might be to search for 
them. He was doomed to days of wearisome exami- 
nation, mounting to the top of an overgTown and 
overloaded book-case, upon a precarious ladder, and 
shrouded as it were, in the accumulated dust of twenty 
or thirty years, seeking what he had never seen, and 
what, as it often happened, he was likely never to see ; 
and further, what perhaps, if found, would have been 
a poor eqidvalent for his annoyance and sufferings 
encountered in making the discovery. 

Lawyers' offices, from the year 1820 until 1850, were 
palaces, embracing a suite of rooms appropriately and 



WILLIAM LEWIS, L.L.D. 459 

magnificently furnished, books and papers in perfect 
order, and where the effluvia of a segar or the annoy- 
ance of tobacco juice, or the temptation even of a spit- 
toon, was rarely, if ever found. In the increase of 
the profession, however, from two hundred to five hun- 
dred members, no inconsiderable change has taken 
place within the last few years. I am no advocate for 
a palace, and I am decidedly opposed to a hovel, but 
there is a happy medium which might be adopted, that 
would be creditable to the counsel and comfortable to 
the client — next to doing things well, is to do them 
agreeably. 

Having thus given a general account of Mr. Lewis's 
professional course and character, the difficulties which 
he encountered and subdued, his personal habits and 
mode of speech, it may reasonably be expected that 
some specimens of his oratory should be supplied to 
the reader, confirmatory of the lofty opinion enter- 
tained and expressed of him by all those who knew 
him in his palmy days, and traced his luminous course 
to " the house appointed for all living." 

In complying with this reasonable expectation, we 
are aware that a speech in type is a very different 
matter from a speech delivered. If Patrick Henry's 
fame depended upon the report of his speeches, instead 
of the eff'ects which they produced, we should be at a 
loss to conceive how he could have acquired such 
deathless renown. 



^gQ THE FORUM. 

This difference is attributable to various causes, com- 
bining to produce dramatic effect. The court — the 
jury — the issue — the surrounding populace ; the inte- 
rest of the contending parties and their respective 
friends — -the presence of the bar — the natural excite- 
ment of the occasion — all tend to impart animation 
and vigor to a speech, and to confirm the sentiment of 
Cicero, that " no man is an orator without a multitude." 
Still, without any of these advantages, and without 
even a statement of the issue under discussion, which 
our space will not allow, we may, by a few excerpts 
from the forensic efforts of this great advocate, furnish 
some faint idea of the grasp of his intellect, and the 
power of his eloquence. The attempts will prove, 
to be sure, comparatively tame and uninteresting. 
Like a Chinese portrait, preserving, with great exact- 
ness the features and proportions of the picture, but 
utterly destitute of that warmth, and gTace, and life, 
and soul, which constitute its true resemblance and 
chief value. Action, which is said to be the essence 
of oratory, is utterly wanting. The impassioned de- 
clamations, the varied tones of the voice, the fixed and 
penetrating eye — the spirit that displays itself " from 
every joint and motive of the body" — are neither to 
be appreciated nor imagined. To be understood — to 
be felt — they must be seen and heard. Still, as we 
cannot revive the dead, thek past works must speak 
for them. 



WILLIAM LEWIS, L.L.D. 4(3]_ 

It is said that upon a nobleman, inquiring of Charles 
James Fox whether he had read Sheridan's great 
speech at Liverpool hustings, he said, " No, how does 
it read ?" . "Admirably," was the reply. " Then," ob- 
served the great statesman, "it was not worth a d — n." 

Every one familiar with the efforts of true oratory, 
can appreciate the truth of this rough remark. It is also 
said that Mr. Pinckney, who, for eloquence, had few, if 
any, superiors, considered that a speech spoken and ^a 
speech written, (as we have elsewhere said,) were such 
different things, that he always, when he could, with- 
held from publication his oratorical efforts, knowing 
the insufficiency of type to convey any just idea of 
the real value of professional or parliamentary elocu- 
tion, and prefering rather to trust to rumor and tradi- 
tion, than to a stenographer or a printer. Neverthe- 
less, it may be expected, after what has been stated 
of Mr. Lewis's great forensic powers, that this hum- 
ble memento of a most distinguished man should be 
attended, at least, by some brief abstracts from his 
professional arguments. There is but one case that 
we shall take leave to refer to : that of his defence 
of Chief Justice M'Kean before the Legislature of 
Pennsylvania, upon an attempt to impeach him, aris- 
ing out of his judgment in the case of Respublica 
V. Oswald, already adverted to in the memoir of the 
Chief Justice. In excuse for the meagre materials 
left to us, after a lapse of scarcely more than half 



^Q2 THE FORUM. 

a century, it may be observed, that plionograpliy at 
that time was unknown, and short-hand writing was 
so little practised, and confined to so few persons, and 
those so incompetent, that it must have given an advo- 
cate more pain in reading his reported speeches, than 
he derived pleasure, or profit in delivering them. Still, 
however, with all these qualifications and allowances, 
some notion may be fi)rmed from the speeches that are 
extant, of the mind, at least, if not of the action of the 
speaker, and with this explanation, we present this 
imperfect specimen. 

The substance of Mr. Lewis's speech, as a member 
of the Legislature of Pennsylvania, in September, 
1778, upon the memorial of Eleazer Oswald, calling 
for the impeachment of Chief Justice M'^Kean and his 
associates, for imprisoning the said Oswald under an 
attachment, and extending the imprisonment beyond 
the limit of the sentence, 1 Dallas, 330 : — 

" Mr. Lewis began with commenting upon tlie origin, nature, 
and purposes of a state of society, wliicli, lie said, was principally 
formed to protect tlie riglits of individuals; and, of tliose riglits, 
lie pathetically described the right of enjoying a good name, to be 
the most important and most precious. He observed, that the in- 
juries which could be done to any other property, might be re- 
paired ; but reputation was not only the most valuable, but, like- 
wise, the most delicate of human possessions. It was the most 
difficult to acquire; when acquired, it was the most difficult to 
preserve ; and when lost, it was never to be regained. If, there- 
fore, it was not as much protected as any other right, the aged 



WILLIAM LEWIS, L.L.D. , 453 

matron and tlie youthful virgin, (since purity of cliaracter is the 
palladium of female happiness,) while they are fettered by the 
habits and expectations of society, are exposed and abandoned by 
its laws and institutions. But this evil is effectually removed, 
when we consider the bill of rights as precluding any attempt to 
restrain the press, and not as authorizing insidious falsehoods and 
anonymous abuse. The right of publication, like every other 
right, has its natural and necessary boundary ; for, though the law 
allows a man the free use of his arm, or the possession of a weapon, 
yet it does not authorize him to plunge a dagger in the breast of 
an inoffensive neighbor. 

"Mr. Lewis then proceeded to consider the immediate subject 
of complaint. He stated it to be two-fold : 1st, That the Chief 
Justice had protracted Mr. Oswald's imprisonment beyond the 
legal expiration of his sentence ; and, 2dly, That the imprisonment 
itself was unconstitutional, illegal, and tyrannical. 

" On the first point, he observed, that it was, indeed, a serious 
charge, if Mr. Oswald could prove that a single justice had arbi- 
trarily altered, or counteracted, the record of the court, in order to 
accomplish the imprisonment of a citizen. But how was the charge 
supported? The opinion given by the Chief Justice to the jailer, 
was not given in his judicial capacity; and though a paper, said to 
be a transcript from the records, was shown to him, yet it was not 
subscribed by the prothonotary, nor was it under the seal of the 
court. This, therefore, could not be a sufficient document to set 
aside his recollection of the sentence ; it was no legal evidence of 
the fact which it stated, Gilb. Law of Ev. 23, and the little time 
that elapsed between the opinion given to the jailer, and the direc- 
tions for Mr. Oswald's release, we may fairly presume to have been 
consumed in examining the records. 

" On the second point, he engaged in a long and ingenious dis- 
qu.isition upon the nature of what is called the liberty of the press ; 
he represented the shackles which had been imposed upon it during 



464 



THE FORUM. 



tlie arbitrary periods of the English government; and thence de- 
duced the wisdom and propriety of the precaution, which declares 
in the hill of rights, that the press shall not be subject to restraint. 
He gave an historical narrative of the British acts of parliament 
and proclamations, which debarred every man of the right of pub- 
lication, without a previous license obtained from ojB&cers, esta- 
blished by the government to inspect and pronounce upon every 
literary performance; but observed, that this oppression (which 
was intended to keep the people in a slavish ignorance of the con- 
duct of their rulers) expired in the year 1694, when the dawn of 
true freedom rose upon that nation. 9 vol. Stat, at large, p. 190. 
Since that memorable period, the liberty of the press has stood on 
a firm and rational basis. On the one hand, it is not subject to 
the tyranny of previous restraints ; and, on the other, it affords no 
sanction to ribaldry and slander ; — so true it is, that to censure the 
licentiousness, is to maintain the liherty of the press. 4 Black. 
Com. 150, 151, 152. Here, then, is to be discerned the genuine 
meaning of this section in the hill of rights, which an opposite 
construction would prostitute to the most ignoble purposes. Every 
man may publish what he pleases ; but, it is at his peril, if he 
publishes anything which violates the rights of another, or inter- 
rupts the peace and order of society ; — as every man may keep 
poisons in his closet, but who will assert that he may vend them 
to the public for cordials ? If, indeed, this section of the bill of 
rights had not circumscribed the authority of the legislature, this 
house, being a single branch, might, in a despotic paroxysm, re- 
vive all the odious restraints which disgraced the early annals of 
the British government. Hence arises the great fundamental ad- 
vantage of the provision, which the authors of the constitution 
have wisely interwoven with our political system ; not, it appears, 
to tolerate and indulge the passions and animosities of individuals, 
but eflPectually to protect the citizens from the encroachments of 
men in power. 



WILLIAM LEWIS, L. L. D. 4g5 

" It lias been asserted, liowever, that Mr. Oswald's address was 
of a harmless texture ; that it was no abuse of the right of publi- 
cation, to which, as a citizen, he was entitled; and, in short, that 
in considering it as a contempt of the court, the judges have acted 
tyrannically, illegally, and unconstitutionally. But let us divest 
the subject of these high-sounding epithets, and the reverse of this 
assertion will be evident to every candid and unprejudiced mind : 
for, such publications are certainly calculated to draw the adminis- 
tration of justice from the proper tribunals ; and in their place to 
substitute newspaper altercations, in which the most skilful writer 
will generally prevail against all the merits of the case. But it is 
moreover the duty of the judges to protect suitors, not only from 
personal violence, but from insidious attempts to undermine their 
claims to law and justice. Hence, Lord Chancellor Hardwicke, 
(who was an ornament to his country, and not one of whose de- 
crees, during the period of twenty years which he sat as chancellor, 
was ever reversed,) has described three sorts of contempts — 1st, 
Scandalizing the court itself; 2dly, Abusing parties who are con- 
cerned in causes there; and odly. Prejudicing mankind against 
piersons, before the cause is heard. 2 Atk. 471. And in 2 Vesey, 
502, though no reflection was cast upon the court, and the offender 
pleaded ignorance of the law, yet, it is expressly laid down, that 
ignorance was not an excuse, and that the reason for punishing 
was, not only for the sake of the party injured, but also for the 
sake of the public proceedings in the court, to hinder such adver- 
tisements which tend to prepossess people as to those proceedings. 
A similar doctrine is maintained in 1 P. Williams, 675. And 4 
Black. Com. 282, pronounces the printing, even true accounts of 
a cause depending in judgment, to be a contempt of the court. 

" But it has been said, that this cause was not depending in 
court, when the offence was committed, because the address was 
published on the first of July, and the writ against Mr. Oswald 
was not returnable until the succeeding clay. This idea originates 



466 THE FORUM. 

in an ignorance of tlie constitution of our courts, wliicli, in this 
respect, differs essentially from tlie constitution of tlie courts of 
England. There, all original process issues out of tlie Court of 
Chancery, and is made returnable into the King's Bench or Com- 
mon Pleas; so that, in truth, the writ gives the jurisdiction, and, 
of course, until it is returned, the court cannot take cognizance of 
the cause. Here, however, the original process issues out of the 
very court into which it is returnable, and is usually tested the last 
day of the preceding term. It is absurd, therefore, to say that the 
jurisdiction of a court, by whose authority a suit is actually insti- 
tuted, can be thus suspended and parcelled out. 

" With respect to the address itself, Mr. Lewis analyzed its of- 
fensive parts, in order to show that it treated the judges with in- 
decent opprobrium; that, in some respects, it was inconsistent 
with truth, and that, in its general operation, it was intended, and 
could not fail, to excite resentment against Browne, the plaintiff, 
and compassion for Oswald, the defendant, in the cause. 

'' He now proceeded to consider the mode of punishment, which 
formed a material part of Mr. Oswald's complaint ; and, in support 
of its legality, referred, generally, to the authorities which he had 
already cited. He observed that much declamation had been 
wasted upon this topic; and that the proceeding by attachment 
had been vehemently rej)robated as the creature of the Court of 
Star Chamber. Though that court might have employed the pro- 
cess of attacliment (of which, however, he did not recollect an in- 
stance,) yet, he insisted, that it was idle and absurd to consider it 
as the creature of a jurisdiction, whose own existence was of a 
much later date, than that of the subject to which we are told it 
gave birth. To prove this, he stated that the Court of Star Cham- 
ber was not instituted until the year 1368 ; that Magna Charta 
was confirmed, at least, one hundred and thirteen years before that 
time ; and, as all the authorities concur in declaring that the pro- 
cess by attachment is as ancient as the laws themselves, and that 



WILLIAM LEWIS, L.L. D. 4g7 

it was confirmed by Magna Cliarta, its origin is consequently long- 
antecedent to that of tlie Court of Star Chamber. 4 Black. Com. 
280, 281, 282, 283, 284, 285. ■ 

" But, lie argued, with great strength and perspicuity, that the 
process of attachment, which in practice was multiplied into innu- 
merable uses, was essential to the administration of justice; and 
that if the exercise of this power was suppressed, the courts them- 
selves might as well be annihilated. He represented, that it was 
an established principle in law, that one court could not punish a 
CO ntemjjf committed against another; then, continued he, how shall 
the Common Pleas repel an injury of that nature ? It is not vested 
with any cx'imiual jurisdiction ; it cannot empanel a grand jury, 
nor try an indictment ; the only remedy therefore which the case 
can admit, is by an attachment. He applied the same reasoning 
to the Supreme Court; and with respect to the Orphans' Court, 
the Court of Admiralty, and the Courts of the registers of wills, 
&c., he observed, that their proceedings, according to the civil 
law, were totally independent of juries; and that, consequently, if 
they were deprived of the process of attachment, it was in vain for 
them to decide and to decree, for they would then be without any 
means to enforce obedience to their decisions and decrees. Nay, 
he added, that, without this power, the legislature itself would be 
exposed to wanton insult and interruption ; and that letters, such 
as he had received, menacing his existence for his conduct on the 
present occasion, might be written and avowed with absolute im- 
punity. He then enumerated many instances in which gross in- 
justice would take place, but for the intervention of this summaiy 
proceeding. Where a sheriff refuses, or neglects, to return a writ ; 
or to pay money which he had received upon an execution ; where 
an inferior court reftises to transmit a record; a witness, or jury- 
man, to attend or to be sworn; and where a defendant in eject- 
ment refuses to pay costs, after a nonsuit, for want of a confession 
of lease entry and ouster; — in all these and many other cases he 



^gg THE FORUM. 

demonstrated, that the great, efficient remedy, was by an attach- 
ment to be issued against the delinquent. 

" In tracing the antiquity of the process by attachment, he re- 
marked, that, it was admitted to be a part of the common law by 
the most authoritative writers ; and that the common law was a 
compound of the Danish, Saxon, Norman, Pict, and civil law. 1 
Black. Com. 63. As, therefore, the attachment is derived from 
the civil law, and the civil law was introduced into England by 
the Romans, early in the first century, he thought it impracticable 
at this day to ascertain its source ; but insisted that enough ap- 
peared to prove it to be of immemorial usage, and a part of the 
law of the land. 

"He then adverted to the leading objection made by the advo- 
cates for Mr. Oswald, that, however the process of attachment 
might be legal in England, it was not so in Pennsylvania. From 
a decision in the time of Judge Kinsey, he showed, that, before 
the Revolution, an attachment had issued for a contempt, and that 
the party had, in fact, answered certain interrogatories filed by 
order of the court; so that, it only remained to inquire, whether 
any alteration had been introduced by the constitution of the State. 
In the twenty-fourth section of that instrument, it is declared, that, 
" the Supreme Court, and the several Courts of Common Pleas of 
this Commonwealth, shall, besides tJie j^otfers usiLaUy exercised hy 
such courts, have the powers of a Court of chancery, so far as re- 
lates, &c." Now, as it appears by the case which occurred while 
Mr. Kinsey was chief justice, that the power of issuing attach- 
ments was usually exercised by the Supreme Court, so far from 
altering the law, this is a direct confirmation of the jurisdiction of 
the court ; for, the greater naturally includes the less ; and if the 
court is vested with all its former powers,, by what possible con- 
struction can we deprive it of this ? But it is answered, that a 
section in the IjiU of rights provides, that, "In all prosecutions for 
criminal off"ences the trial shall be by jury, &c." True; biit the 



WILLIAM LEWIS, L.L.D. 4g9 

whole system must be taken together ; or, if we examine a particu- 
lar part, it must be with a recollection of the immediate subject to 
which that part relates. For, otherwise, this very section might 
as properly be brought to prove, that the judges could not be im- 
peached (since surely that is not a trial by jury) as that they have 
not the power of issuing attachments. All cases proper for a trial 
by jury, the bill of rights clearly meant to refer to that tribunal; 
but can anything more explicitly demonstrate that the framers of 
the constitution were aware of some cases, which required another 
mode of proceeding, than their declaration, that ' Trials shall be 
by jury as heretofore ? Who will assert that contempts were ever 
so tried ? who will hazard an opinion, that it is possible so to try 
them ? 

" But does not the constitution of Pennsylvania further distin- 
guish between the laws of the land and i^xQ judgment of our peers ; 
furnishing a striking alternative, by the disjunctive particle or ? 
This very sentiment, expressed in the same words, appears in the 
Magna Charta of England ; and yet Blackstone unequivocally in- 
forms us, that the process of attachment was confirmed by that 
celebrated instrument. In the fourteenth chapter of Magna Charta 
it is also said, that ' no amercement shall be assessed but by lawful 
men of the vicinage ;' and who, that is at all acquainted with the 
law, or with the reason of the law, can think it possible, in that 
case, to pursue the generality of the expression ? 

" From these analogous principles, therefore, and the construc- 
tion of ages, we may safely argue on the present occasion. But 
the wild and hypothetical interpretations which some men have 
offered, would inevitably involve us in a labyrinth of error, and 
eventually endanger that liberty which they px-ofess, and every 
honest citizen must wish to preserve." 



CHAPTER X. 

JAR ED INGERSOLL, L.L.D. 

BORN, NOV., 1750 — DIED, OCT., 1822. 

Jared Ingersoll was born in New Haven, Connect- 
icut, on tlie seventh of November, 1750, and was 
admitted to practice on the twenty-sixth of April, 
1773, having read law witli Joseph Reed, the grand- 
father of W. B. Reed,* the present able district attor- 

* Mr. William B. Reed, and his lamented brother, Professor Henry 
Reed, united in the preparation and publication of the memoirs of their 
paternal grandfather ; a work which reflects great credit upon their 
affection, and scarcely less upon their industry and fine literary taste ; 
a taste possessed in an eminent degree by their ancestor, as every 
one will admit, even if there remained no other evidence of it, than 
his celebrated letter to General Gage, in reply to his communication 
addressed to George Washington, Esq., which, we presume, is familiar 
to all. If every descendant among us manifested the same reverence 
for ancestry, or the same grateful family regard, the history of this 
country, which, at last, is but the history of its men, would at once, 
be a subject of personal gratification and patriotic pride. But, sad 
to say, prospectj not retrospect, is the prevailing error of the times ; and 



JARED INGERSOLL, L. L. D. ' 47]^ 

ney for the county of Philadelphia. Joseph Heed was 
a celebrated lawyer, and at one period, president of the 
executive council. 

Mr. Ingersoll, the next year after admission, made 
a voyage to Europe, and remained abroad for nearly 
five years, and upon his return, was, in April, 1779, 
admitted to practice in the Supreme Court of Penn- 
sylvania. 

Jared Ingersoll, not less eminent than Lewis, was, 
in every possible way, differently constituted. His great 
merit was that of persuasion, with nothing boisterous — 
nothing clamorous — nothing violent or declamatory in his 
mode of discussion. Calmness, mildness, and modera- 
tion, were his distinguishing and characteristic traits. 

" When he spoke, what tender words he used — 
So softly, that like flakes of feathered snow, 
They melted as they fell." 

He glided into the affections, and disregarding the 
passions, he captivated, by the strength and simpli- 
city of his appeals, the reason and the judgment of 
his hearers. Never excited, never disconcerted, he 
pursued the even and resistless tenor of his way, and 
success almost invariably crowned his efforts. His edu- 
cation was far superior to that of his great rival, and in 

you would hardly suppose that, at the present day, any man ever liad an 
ancestor. Yet, certainly, of all branches of history, biography is the most 
interesting and instructive, and we are told by high authority, it is the 
''■proper study of 7nan." 



^>J2 THE FORUM. 

^ addition to this, he had enjoyed the benefit of foreign 
travel, and the best society of France and England. 
He was a student of the Inner Temple, and, after ter- 
minating his studies there, had returned to liis native 
land, a refined gentleman and an accomplished lawyer. 
Improved by the virtues of Europe, and uncon- 
taminated by its vices, yet Mr. IngersoU never pre- 
sumed upon his superior advantages. He was a 
man of great delicacy, and of course great modesty. 
The most extraordinary feature of his disposition was, 
that, unlike Mr. Dallas and most of his other com- . 
peers, he avoided participation in almost everything 
that did not, in some way, appertain to his profession. 
Eminently fitted to shine in every walk of life, his 
ruling attachment seemed to be entirely centred in. 
the Law. To this, he looked through the medium of 
everything else, and he contemj)lated everything else 
through the lens of the law. His ambition was ren- 
dered perfectly subordinate to his love for his own 
peculiar science. Yet he spoke well upon anj topic, 
and was at home wherever he was found. His state- 
liness, was simplicity ; his reserve, modesty. He was 
unlike Oliver Ellsworth, Chief Justice of the Supreme 
Court of the United States, who, though a great law- 
yer, upon being presented at the British Court, seemed 
somewhat at a loss as to the conventional rules of 
society, and was observed stalking through the marble 
halls of the palace, without entering into conversation 



JARED INGERSOLL, L. L. D. 473 

with any one, until Lord Lynclhurst, inquiring who 
was the tall gentleman in black, and being informed, 
begged the honor of an introduction ; and with admi- 
rable adroitness at once inquired how they regulated 
descents in the United States. Here, of course, the 
Chief Justice was at home, and entered upon an expla- 
nation of the subject, which no doubt interested his 
lordship, and certainly relieved liis colloquist from 
much embarrassment. 

The habits of industry acquired by Mr. IngersoU 
abroad, remained to him during the course of his entire 
life. How often have we seen him, in advanced age, 
drawing nearer and nearer to his office window, as 
the sun declined, engaged in the close perusal of his 
books, as if unwilling to lose a moment that could be 
profitably employed. His whole mind seemed to be 
devoted to his profession, but his heart was not the 
less generous and humane. Just, in all his dealings 
with his fellow men, he nevertheless was forgiving of 
their frailties, and gentle towards their faults. His 
intercourse with the bar displayed remarkable ame- 
nity and urbanity, and he not unfrequently, converted 
those to whom he was opposed, into friends and 
clients. In all the discussions in which we have ever 
known him to be engaged, and they were many, he 
was never known to indulge in any harshness or aspe- 
rity that could give undue pain to others, or prove a 
matter of regret to himself. In the famous case of 

VOL. I. — 31 



474 THE FORUM. 

John Evans, in which some of the most eminent members 
of the bar were concerned — Condy, Levy, and Ingersoll, 
for the plaintiff; Lewis, Rawle, and Hallo well, for defend- 
ant — although the parties were much excited and very 
sensitive, it was generally acknowledged by both sides, 
that the speech of Mr. Ingersoll was the ablest, most ap- 
propriate, and most discreet. Indeed, his manner and 
matter were always unexceptionable. He never lost 
sight of the interest of his clients. He was equally 
regardful of the rights of others, and his own self- 
esteem. His position at the Philadelphia bar resem- 
bled that of Romilly at the British bar — he was both 
feared and beloved. His style was for the greater 
part colloquial; and in an argument to a jury, he 
almost made himself one of them, and drew them im- 
perceptibly to his opinions and conclusions. Others 
may have seen him in a state of excitement, but 
we never did. Excitement would have been unfa- 
vorable to the tone of such a mind. As obstruction, 
in a smooth and transparent stream reflecting all the 
beautiful scenery by which it is surrounded, and smil- 
ing in the rays of the sun, would render the crystal 
waters turbid, and disturb their imagery; so would 
excitement, m thoughts like his, have disturbed their 
serene and tranquil course. 

We have said the failing of Mr. Lewis was to rest 
too often on the weak poiats of his case. The peculi- 
arity of Mr. Ingersoll was, that where he discovered 



JARED INGERSOLL, L. L. D. 475 

a weak point in his adversary, instead of overlooking 
or treating it with, indifference, he assailed it with all 
his force, and never left it until it was utterly demo- 
lished, and his adversaries' cause with it. He could 
seize upon a weak position, and avoid the effects of a 
strong one, better than any man at the bar. He was, 
of course, remarkable for his success ; and during a long 
session of the Circuit Court of the United States, he 
gained every cause, but one, in which he was engaged. 

Tliis faculty was always manifested by him in an 
extraordinary degree, but so far as we remember, it 
was most remarkable upon the trial of John Evans 
v. Jane Pierce and Others, in 1810 ; and in the case 
of the Commonwealth v. Richard Smith, in 1816. 
In the first of these, the ground of action was not 
only unpopular, but feeble in itself, and the verdict 
obtained by the plaintiff merely nominal; but it is 
not going too far to say, that no other member of the 
bar than Mr. IngersoU, could have prevented a verdict 
for the defendant. His whole speech consisted of the 
exposure of the fallacy of the remarks of the opposite 
counsel. It is unnecessary that passages of the speech 
should be specially referred to. It is published, and 
although far inferior to the speech delivered, abun- 
dantly supports the opinion thus expressed. 

The speech that probably gives the best notion of 
the tone and quahty of Mr. IngersoU's forensic efforts, 
is that delivered by him in the Senate of the United 



^yg THE FORUM. 

States, -apon the impeacliment of WiUiam Blount, a 
senator of the United States, for high crimes' and mis- 
demeanors. 

This impeachment was founded upon a message from 
the President, in 1797, to the Senate and House of 
Representatives, alleging that the situation of the 
country was critical, and furnishing documents in sup- 
port of that allegation. One of these documents was 
a letter, dated April 21st, 1797, from Mr. Blount, 
obviously designed to produce a disruption between 
the United States and the Indian tribes. 

Upon investigation of these documents, Mr. Sit- 
greave, of the House of Representatives, reported the 
following resolution : 

'^^ Resolved, That WilKam Blount, a senator of the 
United States, from Tennessee, be impeached of high 
crimes and misdemeanors." 

Mr. Sitgreave was then appointed to go to the Senate 
and impeach Blount ; and also demand that he be se- 
questered from his seat in the Senate, which was 
accordingly done. Blount was then taken into cus- 
tody, and held to a recognizance of twenty thousand 
dollars himself, with two sureties, each in fifteen 
thousand dollars. In addition to this, Blount was 
expelled from the Senate — ^his bail surrendered liiin, 
but he was afterwards admitted to reduced bail. 

On the seventeenth of December, 1798, the Senate 
formed itself into a Court of Impeachment. 




JARED INGERSOLL, L.L.D. ' 477 

On the twenty-fourth of December, Mr. A. J. Dal- 
las and Mr. Jared IngersoU appeared for defendant, 
and by permission entered their pleas. 
■^'MiAn'ng the charge. 

at if charge were true, the Senate has 
alleging that the jurisdiction belongs 

"~~~~~— ^^"^ of these grounds of defence that 
ver to Mr. Bayard, made a most 

^|«.^- §«5g'issj:'l' °^cr^:i4-xtracts from which, as affording; 

■|?^ ^^I^^VS'X-^ <.°vJpl-^^^i^ ^^yH we now take leave to 
^^s'" s^l^J'Cs'^ll .a^l^^l.-elivered on the 4th of January, 

■■g.c' =!'■-'' ■^■5.0 « "^-Sisf-f rn, as directed, to tlie books of the law, to know 
«£'5j^^ = f_5-5« ^'^ '*'c47o)roceedinp; by impeacbment, what do I find of it 
^.^5p.~^ o'^.Sb. aj,gff?Sjod, and much ill. And while the enero-y of the 
"'- ■ ^-" '^''~ ^e-^T^'^^Q, copious as it is, is exhausted in eulogiums on 



SS 



:r ■:? .-?-■ ^: 



"615.^^1: «-3 ^s-^m criminal cases, i read ot none on proceedings by 
impeachment. ' The best English writers content themselves with 
stating, coldly, that the most proper and the most usual instances 
of proceeding by impeachment, are against the ministers and other 
great officers of state, who, surrounded by the imposing splendor 
of royal favor, are too great for the grasp of law administered by 
courts and juries ; and from the special nature of the alleged crimes 
sometimes a knowledge is requisite, not always possessed by juries. 
Sir, I find in those books, that the trial by jury, in criminal cases, 
is the palladium which has preserved the liberties of the British 
nation, during the shocks of conquests from abroad, the convulsions 
of civil war within, and the more dangerous period of modern 
luxury. 



476 



THE FORUM, 



States, upon the impeacliment of William Bloimt, a 
senator of the United States, for high crimes' and mis- 
demeanors. 

This impeachment was founded upon a r 
the President, in 1797, to the Senal 
Representatives, alleging that the^ 
country was critical, and furnishing, 
port of that allegation. One of t- 
a letter, dated April 21st, 17*" ^^. 




IS -1 



obviously designed to produce |'S'^|sl0l-?''jl^ l-tl.|^,|^:| 
the United States and the IndiaL=1^3'^-* «|i^^ ^alk^?. ' 
Upon investiaration of these dlfpa' s. *^I'?'^S ^^l^'*!?:'. 

S-i GO S c > 5 S-S o 



t-^Ul^l 



greave, of the House of Representatil ^''J "^°|^ - ^^^ ;,, 

==f C. C Si, 






followino; resolution : ,^,.^ 

''Resolved, That Wilham Blount, a^ll| ^?|Vl P|s9^ 
United States, from Tennessee, be imp? "5'^^ lllll> s'^!^^'! 
crimes and misdemeanors." 1.1^ ^■^^•'ii^ %cJ^^-^: 

Mr. Sitgreave was then appointed to gG||^S ^vSonate 
and impeach Blount ; and also demand that he be se- 
questered from his seat in the Senate, which was 
accordingly done. Blount was then taken into cus- 
tody, and held to a recognizance of twenty thousand 
dollars himself, with two sureties, each in fifteen 
thousand dollars. In addition to this, Blount was 
expelled from the Senate — his bail surrendered him, 
but he was afterwards admitted to reduced bail. 

On the seventeenth of December, 179S, the Senate 
formed itself into a Court of Impeacliment. 



JARED INGERSOLL, L.L.D. 477 

On tlie twenty-fourth of December, Mr. A. J. Dal- 
las and Mr. Jared Ingersoll appeared for defendant, 
and by permission entered their pleas. 

1. Denying the charge. 

2. Denying that if charge were true, the Senate has 
jurisdiction ; and alleging that the jurisdiction belongs 
to the courts of common law. 

It was in support of these grounds of defence that 
Mr. Ingersoll, in answer to Mr. Bayard, made a most 
abie argument, a few extracts from which, as affording 
some faint notion of his style, we now take leave to 
present. It was delivered on the 4th of January, 
1799. 

" Sir, when I turn, as directed, to the hooks of the law, to know 
the nature of the proceeding by impeachment, what do I find of it 
there? Little good, and much ill. And while the energy of the 
English language, copious as it is, is exhausted in eulogiums on 
trials by juries in criminal cases, I read of none on proceedings by 
impeachment. The best English writers content themselves with 
stating, coldly, that the most proper and the most usual instances 
of proceeding by impeachment, are against the ministers and other 
great officers of state, who, surrounded by the imposing splendor 
of royal favor, are too great for the grasp of law administered by 
courts and juries ; and from the special nature of the alleged crimes 
sometimes a knowledge is requisite, not always possessed by juries. 
Sir, I find in those books, that the trial by jury, in criminal cases, 
is the palladium which has preserved the liberties of the British 
nation, during the shocks of conquests from abi'oad, the convulsions 
of civil war within, and the more dangerous period of modern 
luxury. 



478 



THE FORUM. 



"My impression or my sentiments upon this subject are not 
entitled, as such, to the notice of this honorable body ; but when 
I cite, in their support, such names as Hale, Hume, Blackstone, 
and Wooddeson ; when I can add the expressions of the first great 
charter of American freedom, the Declaration of Independence, in 
which I find it assigned, as one reason for the dismemberment of 
the empire, that the king had given his assent to laws for depriving 
us in many cases of the benefits of trial by jury. I trust what I have 
observed in this particular will not be stigmatized as declamation. 

" I read in Magna Charta, that no man shall be condemned but 
by the lawful judgment of his peers, or the law of the land. What 
was this law of the land ? What other mode of proceeding m 
criminal causes was then in practice, except trial by jury. Hale, 
eminently great and equally good, expresses it to be by the com- 
mon law of the land. A learned English historian explains the 
expression as alluding to those methods of trial which originated 
in the presumptuous abuse of revelation in the ages of dark super- 
stition. The trial by ordeal, or fire or water; the corsned or morsel 
of execration, and the trial by battle. I add, informations originally 
reserved in the great plan of the English constitution, and attach- 
ments for contempts. Was the proceeding by impeachment within 
the exception? Magna Charta bears date A. D. 1225. The first 
instance of impeachment mentioned in the juridical History of 
England, as far as I can find, was, on the third of February, 1388, 
or at least 1327, in the reign of Edward the Third, more than one 
hundred years after Magna Charta ; unless, indeed, it be the pro- 
ceedings against the two Dispensers, in 1321, which were so irre- 
gular, that it was made void in Parliament the following year. 

"It is sufiicient, says the celebrated Montesquieu, as quoted 
by Justice Blackstone, to render any government arbitrary, that 
the laws on the subject of treason are indefinite; for this reason, 
the statute of twenty-fifth Edward III., attempted to render the 
law on this subject definite and clear. The House of Commons, 



JARED INGERSOLL, L.L.D. , 479 

in order to destroy an object of their vengeance, attempted to in- 
troduce a new species of treason, constructive ; and to support the 
charge by a new species of evidence, called accumulative. Can 
any man read without the strongest sensibility the defence made 
on that occasion ? Penalties are imposed previous to the promul- 
gation of the laws, and the defendant is tried by maxims, unheard 
of until the moment of the prosecution. Who can recollect, with- 
out horror, the cruel manner in which the defendant was treated 
on his trial, as described by Wooddeson, vol. ii. pages 608, 609. 
Personal animosity and violence, and the implacability of deter- 
mined enemies, marked their proceedings, until it ended in a bill 
of attainder, which a subsequent parliament repealed, erased, and 
defaced. Let me add, in the words of the same author, Wooddeson, 
vol. ii. page 620, from this, or a more particular survey of the 
proceedings on impeachment, we shall find occasion to observe, 
that though great is the utility of the public ends, which they are 
designed to answer, they have been too often misguided by per- 
sonal and factious animosities, and productive of alarming dissen- 
tions between two branches of the legislature. The incompetency 
of a court and jury sometimes to decide, from the greatness of the 
offender and the nature of the crime, is urged against me. I do 
not believe that at present any offender is too great for the grasp 
of law as administered by our courts and juries ; but what may 
happen in our eventful history I know not ; and, therefore, I con- 
fess it to be proper that a provision of this kind should find a place 
in the constitution, as far as respects the executive and its officers ; 
but, further than this, I contend there is not any necessity that it 
should be carried, and that such extension of this proceeding would 
be infinitely dangerous to the citizens. Might not the influence, 
the weight, and the protracted nature of such proceedings by im- 
peachment, endanger even innocence ? Have we not seen, in our 
own days, an impeachment continue seven years ? Had the de- 
fendant possessed no other means of defence than innocence, the 



480 



THE FORUM. 



prosecution would have occasioned his ruin in one-seventh of the 

time. 

" Wherever a proceeding in a criminal matter deviates from the 
course of the common law by jury, whether such proceeding he in- 
introduced by statute or by a constitution, such statute and such 
constitution ought to be strictly construed. If any one thinks I 
have dwelt too long on this prefatory matter, let him read the en- 
comium on trial by jury, by Mr. Justice Blackstone; let him read 
Hume's History of England, vol. i. page 98, and Blackstone's 
Com., vol. iii. page 349, and Blackstone's Com., vol. iv. pages 349, 
414 ; he will not find trials by jury spoken of in those qualifying 
terms which Wooddeson applies to the trial by impeachment. 

" Thus far I urge the argument, and no farther. The constitu- 
tional power of impeachment is to be strictly construed. If the 
question that now arises be involved in doubts, those doubts ought 
to be decisive in favor of the accused. The power is to be ex- 
tended only so far as is expressed, or to be clearly inferred, by a 
fair and clear, if not necessary, implication from what is expressed. 

"I acknowledge that the trial by jury, like every human insti- 
tution, is liable to abuse ; but I contend that it is less so, infinitely 
less so, than trial by impeachment. The demon of faction most 
frequently extends his sceptre over numerous bodies of men. 

" I conceive that it was this retrospective view of the history of 
impeachment that was in the mind of the convention who framed 
the Constitution of the United States. Hence, the salutary re- 
striction, as I understand it, not as contended by our opponents, 
an introduction upon the indefinite ground on which it is placed 
in England ; but in a restricted manner, in a narrow channel, to 
supersede the trial by jury only in certain cases. The malignant 
suggestions of envenomed jealousy have no access to my breast. 
I do not impute improper motives anywhere. I ask only a rea- 
sonable construction, to ascertain its extent. I thought proper to 
consider its nature as exemplified in the juridical histoiy of that 



JARED INGERSOLL, L.L.D. ' 43 ^ 

country from whose system of jurisprudence we have adopted it. 
Let us obtain an exposition of our great charter^ according to its 
true and genuine meaning. It is surely our duty to examine and 
to understand, as well as to revere and to defend the Constitution. 
Previous to the formation of the present Constitution of the United 
States, this subject had been under consideration in forming state 
constitutions ; and in New York, whose constitution was made in 
1777 ; and in Massachusetts, whose constitution was made in 1780, 
the practice of proceeding by impeachment was in these, and every 
instance where the power was allowed, restricted to the executive 
and its officers, for malconduct in office. A strong indication of 
the sentiment that was generally entertained upon the subject; 
and such was the situation of the private citizen, that he could not 
be condemned of any criminal charge, but by the unanimous con- 
sent of a jury of his neighborhood." 

The speeches of Mr. Lewis may be resembled to a 
cataract, foaming and sparkling; those of Mr. Inger- 
soU, to a serene, quiet, and glassy lake. Neither 
of them can be described — they must be heard, in 
order to be comprehended. In Commonwealth v. 
Smith, which was the last criminal cause argued by 
Mr. Ingersoll, and but a few years before his death, 
he manifested the same skill and power that he had 
shown in his earlier days. Indeed it was to be observed, 
in regard to all the men of his class, that they came in 
at the death almost as fresh and vigorous as when they 
commenced the chase. To show that good sprmgs from 
evil, it is hardly to be doubted that this result was 
mainly attributable to the vicissitudes of fortune, expe- 



482 THE FORUM. 

rienced in the latter part of their lives. Ordinary men 
might have been dismayed, but not so with them — ^the 
harder their fall, the higher their rebound ; and it is 
rendered very questionable, whether these reverses 
did not largely contribute to the expansion and devel- 
opment of their great intellectual powers, and the esta- 
bhshment of an unrivalled and undying fame. 

Men, who have laid up for themselves "treasure 
on earth," have nothing here to labor for, and they 
become inert and supine, the mind slumbers among 
its hordes, until it sleeps the sleep of death ; whereas, 
the same tribulation that mostly gives rise to energy, 
is calculated to renew and preserve it, by compel- 
ling those exertions, which we should otherwise re- 
fuse to make. Adversity is a better school than 
prosperity, and teaches more lasting and useful les- 
sons ; it humanizes the heart, instead of hardening 
it, and it imparts to the mind that pathos, sympa- 
thy, and moral influence, wliich form the better part 
of an orator and a man. Such men as Lewis, In- 
gersoU, Rawle, Tilghman and Dallas, never valued 
themselves from then* estates, nor were they so val- 
ued by others. Their glory consisted in direct men- 
tal endowments from their creator, cultivated, im- 
proved, and enlarged by a life of persevering indus- 
try and unblemished integrity. This remark is equally 
applicable to them all ; in short, it was in the combi- 
nation of theu' great qualities, that while they stood a 



JARED INGERSOLL, L.L.D. 433 

constellation together, they reflected mutual and reci- 
procal light. 

Although Mr. Ingersoll's sight was defective, he 
generally took copious notes, hut rarely attempted to 
read them afterwards. They were taken, probably, for 
the purpose of impressing the facts more deeply on 
his mind. His favorite mode of preparation for an ar- 
gument was to walk his room and soliloquise, by which 
he succeeded in working himself into just so much 
warmth as was required by the occasion. 

For my own part, although far from presenting my- 
self as an example to be followed, I would not give a 
walk of twenty feet back and forth, in the way of pre- 
paration, to reply to the argument of an antagonist, 
for the most elaborate notes that could be taken. 
This, no doubt, is to be attributed to a long-continued 
habit, originating during school-boy days, in conning 
over and preparing recitations. 

This effect of habit on the mind, is referred to by 
Sir Walter Scott in his life. He says, that dming his 
early instruction, there was a boy in his class who, 
though not remarkable for brilliancy or study, always 
contrived to be at the head, in defiance of every effort 
on the part of others to supplant him. This was hard 
to understand, says Scott, and I watched him closely, 
in order to discover the secret, when I found that, while 
he was reciting, he always played with a particular but- 
ton upon his coat. So, just before the next lesson came 



^o^ THE FORUM. 

on, I cut off that "magic button." With the very 
first question that was asked, he sought and fumbled 
for it, and not finding it, became confused, unable to 
answer, and lost his place. 

The loss of the case of Clough, for the murder of Mrs. 
Hamilton, was always ascribed, by the senior counsel 
for the defence, to his having been so hemmed m, from 
the first to the last of the trial, by an immense con- 
course of spectators, as actually to forbid his enjoy- 
ment of the power of locomotion. 

This peripatetic mode of preparmg for a speech was 
not at that time pecuhar to Mr. Ingersoll. It was 
adopted by Lewis, Hopkinson, Condy, and many other 
of the prominent members of the bar. 

In the year 1811, he was appointed by Governor 
Snyder the Attorney-General of the State of Pennsyl- 
vania, wholly without solicitation, and apparently with- 
out desire. The circumstances attendant upon the 
appointment were somewhat extraordinary, and per- 
haps never known even to him. Governor Snyder 
was the head of the democratic party, and was an in- 
flexible democrat himself; but, at the same time, he 
was a man of great political discretion and prudence. 
It so happened, that when this appointment became 
necessary, there was not a lawyer belonging to his 
party competent or eligible for the post. Mr. Dallas, 
at that period, being the District Attorney of the 
United States. Tliis was a dilemma which was not 



J A RED INGERSOLL, L.L.D. 435 

easily escaped or removed. To appoint an incom- 
petent man was irreconcilable with the Governor's 
views, and injurious to the party and the State admi- 
nistration; and to appoint a federalist would be, at 
least, a humiliating concession, and attended by great 
party excitement and acrimony. What was to be 
done ? The Grovernor consulted his political friends 
in this city, and, after much deliberation, it was 
resolved, as Mr. IngersoU, though a decided fede- 
rahst, was not an active, noisy politician, (and had 
previously, indeed, been appointed Attorney-General 
by Governor M^Kean, and held that situation from 
1791 to 1800,) that the commission should be ten- 
dered to Mm. But there was another difficulty. 
Might he not refuse it ? and thereby throw reproach 
upon the appointing power. Party spirit was at a 
lofty pitch at the time, and the parties jealously 
watched each other, and were not over scrupulous in 
securing every possible advantage that might be re- 
spectively afforded. In this condition of things, the 
Governor authorized his confidential advisers in Phila- 
delphia to ascertain, if practicable, what might be Mr. 
Ingersoll's disposition upon this subject, and, if favor- 
able, to fill up his commission at once, which they al- 
ready held in blank for that purpose. StiQ, political 
asperity was such, and the dividmg line was so broad, 
that little or no friendly intercourse prevailed between 
opposite sides ; and, in addition to this, the agents of 



436 THE FORUM. 

Governor Snyder scarcely knew Mr. Ingersoll, except 
by reputation, and, therefore, were at a loss as to tlie 
mode of approaching him and ascertaining his senti- 
ments, without compromising their own position, as 
well as that of the State Executive. This object, 
however, was finally accomplished through the agency 
of the late Doctor Hudson, who contrived to bring 
about a meeting, at his house, between a friend and 
distant connection of Mr. Ingersoll and the Governor's 
agents. This meeting resulted in Mr. Ingersoll's inti- 
mating unsuspectingly, and in private intercourse, that 
although he did not desire, and would not seek the 
office, still, if properly offered, it would not be refused. 
The appointment was immediately filled up in his 
name. This situation was held by him from 1811 
until the year 1816, when he resigned; and a more 
honorable, capable, impartial and distinguished Attor- 
ney-General never graced the annals of this or any 
other State. 

In the year 1820, he was appointed, by Governor 
Wolf, President Judge of the District Court for the 
city and county of Philadelphia, which position he 
occupied until his death, which occurred shortly after- 
wards. At the trine of liis appointment he was seventy 
years of age — ten years beyond the judicial limit in 
New York. The District Court, at that period, scai'cely 
afibrded an opportunity for the display of his great 
powers ; and perhaps it may be doubted, after having 



JARED INGERSOLL, L.L.D. 4g7 

held a high position as an advocate for half a century, 
whether he could so change the habits of his thoughts 
and practice, as to equal on the bench his great emi- 
nence at the bar. He was, it is true, an able lawyer, 
but his extraordinary j)owers of discussion before a 
juT}^, were such as to throw any mere legal attainments 
or judicial position, into the shade. Still, his mind re- 
tained its clearness until the last, and no one could fail to 
perceive what must have been his meridian glory, from 
the mild lustre and mellowed beauty of his declining 
sun. 

He died on the thirty-first of October, 1822, at the 
age of seventy-three years, leaving to the country the 
rich legacy of an illustrious and untarnished name, 
and succeeded in the profession by his sons, who not 
only kept liis laurels green, but magnified them, by 
addmg to and interweaving with them, their own; like 
the pious JEneas, at once deriving and imparting fame 
from filial gratitude and devotion. The name of the 
IngersoUs, as great lawyers and most accomplished 
scholars and advocates, will be as enduring as the re- 
collection of the bar itself, of which they were always 
amongst the brightest and most distinguished models. 
How attractive was the scene that exhibited the father 
and sons opposed or united in a case, and blending all 
the charms of filial and parental affection, with a scru- 
pulous and rigid fulfilment of professional duty. 

Mr. IngersoU was slender in his form, about five 



^gg THE FORUM. 

feet ten inclies high, and as straight as an arrow, up to 
the latest period of his life. His face was interesting; 
his features small, hut expressive ; his forehead full, 
hut not high, and his eye manifesting at the same time 
great refinement and intelligence. He was somewhat 
near-sighted, and slightly hald — the result of hard 
study, as well as years. His dress was neat, and, as 
was the fashion of the day, consisted of a drab body 
coat and small clothes, with silk stockings, and shoes 
with buckles. Brown, drab, and gray, were the pre- 
vailing colors worn by the members of the bar until 
the year 1815. We do not remember, among the elder 
lawyers, any eminent men at the bar, of that time, 
who ever adopted any other color of dress. This mat- 
ter is unimportant, but it may still aid the fancy in 
summoning into view the appearance of those great 
men whom we profess imperfectly to depict. I cannot 
describe them by a comparison with any men of more 
modern date. They were themselves alone. In man- 
ner, in matter, in dress, in intercourse, in social and 
professional harmony — ^in short, if we may use the 
word, in unity as a body — they were unlike anything 
that the Philadelphia bar, or any other, so far as we 
know, ever presented. No jealousies — few antipathies 
— ever marred then most delightful companionship. 
During the cncuits, which then prevailed, they were 
thrown much and closely together ; and it was refresh- 
ing and delightful to hear them speak, as they were all 



JARED INGERSOLL, L. L. D. 489 

fond of doingj of the many incidents and anecdotes- of 
their diversified and niultifarous experience. For a 
considerable time, they were in the habit of giving 
"weekly and reciprocal dinner or supper parties, and it 
may be well conceived that nothing physical or intel- 
lectual, in the way of rational enjoyment, was deficient 
in their repasts. Their fortunes were for the most 
part abundantly ample, if not princely ; their private 
income alone ranged from ten to twenty thousand dol- 
lars a year; and with some of them, their practice 
equalled, if it did not exceed that amount. But talents, 
not fortune, was the standard by which they were 
estimated, and that was indeed the standard which 
secured them social and professional equality. Such 
principles, and such continued intimacy, rendered them, 
as it were, a band of confiding brothers, spurning all 
circumvention and artifice themselves, and never sus- 
pecting or countenancing it m others. 



VOL. I.— 32 



CHAPTER XL 

WILLIAM BRADFORD, L.L.D. 

BOEN, SEPT. 14, 1755— DIED, AUG. 23, 1795. 

Although our attention was directed, mainly, to the 
Chief Justices of Pennsylvania, yet, it is allowable, 
when extraordinary ability incidentally presents itself, 
to bestow upon it, at least, a passing notice. We hare, 
therefore, thought proper to introduce a very brief out- 
line of one of the most remarkable men of the last cen- 
tury. One who, at a period of life when most men are 
scarcely profitably known, had achieved the liighest 
honors, and secured to himself the admiration and gi'a- 
titude of all classes of his fellow-citizens. And who, 
while he was honored by the confidence of Washing- 
ton, and basked in public favor, and enjoyed public 
office of the proudest distinction, philanthropically di- 
rected his lofty muid to the humane pui'pose of ame- 
liorating the features of the criminal code, and pre- 
serving human hfe. Thus it is, that great men se- 



WILLIAM BRADFORD, L.L.D. 49^ 

cured hj their morality, what they acquired by their 
talents. His brilliant genius might have been forgot- 
ten, his powers as an advocate have passed away, 
with the stirring times and occasions which called 
them forth ; but his humanity stands imperishably in- 
scribed upon the records of the State and the country, 
and, we trust, upon a Higher Record, which, in the 
language of Milton, 



'' No time can change, no copier can corrupt." 

For the substance of this brief memoir, we are par- 
tially indebted to a sketch from the pen of one, who, 
from his own mental accomplishments, was qualified to 
appreciate the accomplishments of Mr. Bradford ; and 
who, in the full exercise of the learning and virtue 
which he has commemorated in another, has prema- 
turely closed his own brilliant career.* 

William Bradford was born at Philadelphia on the 
fourteenth of September, 1755. He died on the 
twenty-third of August, 1795, not having reached the 
completion of his fortieth year. Yet, within this compa- 
ratively limited span of life, he exhibited more talents 
and achieved more honors than any other man of his day. 

In the spring of 1769, he was entered at Nassau 
Hall, (Princeton College,) New Jersey, where he pur- 
sued his studies with uncommon assiduity. He there 

* Horace Binuey Wallace. 



492 '^'^^ FORUM. 

formed an intimate friendship with James Madison, 
then a student at the same institution, which led to a 
correspondence between them which continued for 
several years. 

In the year 1772, he received the degree of Bache- 
lor of Arts, and in 1775 became Master of Ai'ts. 

He subsequently became a student of law in the 
oflB.ce of the Honorable Edward Shippen, afterwards 
Chief Justice of Pennsylvania. 

Within a year from this time, in the summer of 
1776, he entered camp as a A^olunteer, and was ap- 
pointed, during the same year, a Captain in the Conti- 
nental Army, and, on the tenth of April, 1777, he 
received, by a ballot in Congress, the rank of Colonel 
in the Army of the United States, being then but 
twenty-two years of age. 

He w^as with the army at head-quarters, at White 
Plams, Fredericksborough, and Raritan, during 1778, 
but left the service the next year, on account of ill 
health. 

He resigned on the first of April, 1779, and re- 
turned to his legal studies. In March, of the same 
year, he was admitted to practice in the Supreme 
Court of Pennsylvania, on the very day of the admis- 
sion of Moses Levy, who long survived him, and who 
also reached great eminence in the legal profession. 

In August, 1780, when only twenty-five years of 
age, and one year at the bar, he received the appoint- 



WILLIAM BRADFORD, L.L.D. ' 493 

ment of Attorney-General of the State, as the succes- 
sor of Jonathan Dickinson Sergeant, one of the. bright- 
est luminaries of the bar. 

We must not here omit the opinion of Mr. Ilawle, 
in relation to this truly amiable and eminent man. 
What Mr. Rawle touches, admits of no improvement, 
and insures respect. And thus he speaks of Bradford : 

'^ After tliis appointment, lie advanced," says Mr. Rawle, '' with 
a rapid progress to an eminence of reputation, wliich never was de- 
faced by petty artifices of practice, or ignoble associations of 
thought. His course was lofty, as his mind was pure; his elo- 
quence was of the best kind ; his language was uniformly classi- 
cal ; his fancy frequently interwove some of those graceful orna- 
ments, which delight when they are not too frequent, and do not 
interrupt the chain of argument. 

" Yet his manner was not free from objection. I have witnessed 
in him what I have occasionally noticed in the public speeches of 
Charles James Fox, a momentary hesitation for want of a particu- 
lar word, and stopping and recalling part of a sentence, for the 
purpose of amending it ; nor was his voice powerful, nor always 
varied by those modulations of which an experienced orator knows 
the utility. 

" His temper was seldom ruffled, and his speeches were gene- 
rally marked by moderation and mildness. The only instance in 
which I remember much animation, was in a branch of the case of 
Grirard v. Basse and Soyer, which is not in print. The principal 
case is in 1 Dallas, 119. Mr. Bradford was concerned for the un- 
fortunate Soyer." 

Mr, Samson Levy, in his agreeable way, introduces 



^94 THE FORUM. 

an anecdote in regard to Mr. Bradford, which sheds 
some light upon our subject, though it would seem to 
have been drawn more from fancy than fact. 

Mr. Levy, when charged with being admitted very 
early to the barj for the purpose of disproving the 
charge, which was made by Mr. Hallowell and Mr. W. 
H. Todd, (for Levy was very sensitive on the subject 
of his age,) stated, in the presence of those gentlemen 
and many others, that he was but a mere boy when 
ihey were in full practice ; and to confirm his asser- 
tion, related the following story. " I wandered into 
the court," said he, " upon one occasion, sitting then at 
the corner of Second and Market streets, where I found 
a very handsome young man, charged with counterfeit- 
ing the coin of the United States. William Bradford 
conducted the prosecution, and Mr. Hallowell and Mr. 
Todd were concerned for the defendant. Mr. Hallo- 
well did the speaJcing, and earnestly maintained the 
perfect innocence of the defendant. Mr. Todd, by 
dint of putting the corner pf his handkerchief into his 
eye, contrived to do the weeping, and enlist sympathy 
in behalf of the prisoner. The whole scene was truly 
affecting. When, after an address of some hours from 
Brother Hallowell, as I now take leave to call him, 
though he then seemed old enough to be my father, 
Mr. Bradford rose to reply, but he simply said, ^ Li 
answer to this eloquent appeal, I merely request the 
crier to raise the redundant locks of the defendant's 



WILLIAM BRADFORD, L.L.D. 495 

hail'.' This was done ; and, behold, he had been crop- 
ped of both ears! Plallowell and Todd ran out of 
court, and the defendant was convicted, of course. I 
was but a child at the time, but the scene will for ever 
remain on my memory."* 

On the 22nd of August, 1791, Governor Mifflin 
appointed Mr. Bradford one of the Justices of the Su- 
preme Court, in the place of William Allen, and as a 
crowning glory, on the 28th of January, 1794, having 
resigned the office of Judge, he was commissioned by 
President Washington, Attorney-General of the United 
States, in the place of Edmund Handolph, who became 
Secretary of State. 

On the 8th of August, 1794, he was chosen one of 
the commissioners, to confer with the agitators and citi- 
zens engaged in the Western insurrection. The com- 
missioners failed in their purpose, and reported to 
President Washington on the 24th of September, that 
the laws could not be enforced by the usual com^se of 
civil authority, and that some more competent force 
was necessary to cause them to be duly executed, and 
to insure to the officers and well disposed citizens, that 
protection which it was the duty of government to afford. 

The President accordingly at once issued his procla- 
mation, giving notice that a military force, adequate 

* This episode is introduced, to show the estimate in which Mr. Brad- 
ford was held by the earlier members of the bar, as well as to exhibit an 
amusing trait in the character of Mr. Levy. 



496 THE FORUM. 

to the emergency, was already approacMng tlie scene 
of disaffection. The result of this insurrection is 
known. In the course of the correspondence con- 
nected with it, the great intellectual power of Mr. 
Bradford was conspicuous, and properly appreciated. 

But then there was another, and a moral triumph, 
that he enjoyed, which has entailed blessings upon his 
name, that shall endure while the memory of his ^drtue 
shall last. 

In the year 1792, while Justice of the Supreme 
Court, when the revision of the criminal laws, in re- 
gard to capital punishments, was before the Assembly 
of Pennsylvania, at the request of Governor Mifflin, 
he drew up a report for the use of the Legislature, the 
conclusion of which was, after very able argument, 
that in all cases except high treason and murder, the 
punishment of death might safely be abolished, and 
milder penalties advantageously introduced. 

On the 22nd of February, 1793, the Senate, in pur- 
suance of this report, passed a resolution, that for all 
offences, except murder in the first degree, the punish- 
ment should be changed to imprisonment at hard labor, 
and on the 22nd of April, 1794, an Act was passed to 
the effect, that no crime whatsoever, except murder of 
the first degree, shall be punished with death in the 
State of Pennsylvania.* This humane result was 

* The preamble to tins Act sets forth, that -whereas, " The design of 
punishment is to prevent the commission of crime, and to repair the in- 



WILLIAM BRADFORD, L.L.D. 497 

principally attributable to the learning, talents, and 
unwearied industry of William Bradford, and imparted 
to him a glory, which no time can efface. 

In the midst, however, of his career of usefulness 
and unsullied virtue, in the perfection of his hopes 
and his genius, liis life, interesting and invaluable as 
it was, was suddenly terminated. 

During the summer of 1795, his residence was at 
Rose Hill, in Burlington, New Jersey. The cabinet of 
General Washington vf as at that time closely occupied ; 
the official duties of IMr. Bradford, engrossing all the 
day in the city, obliged him to return to his residence 
at night ; this exposure produced a fever of which he 
died, on the seventeenth day of August, 1795, before 



jury done thereby to society, or the iadividual ; and it hath been found by 
experience, that these objects are better attained by moderate and certain 
penalties, than by severe and excessive punishments. And whereas, it is 
the duty of every government to endeavor to reform, rather than extermi- 
nate offenders ; and the punishment of death ought never to be inflicted, 
where it is not absolutely necessary to the public safety. Therefore, no 
crime but murder in the first degree shall be punished with death." The 
next section of the Act defines briefly and distinctly, the difference between 
murder in the first and second degree, thus : "All murder, which shall be 
perpetrated by means of poison, or by lying in wait, or by any other kind 
of wilful, deliberate, and premeditated killing, or which shall be commit- 
ted in the perpetration, or attempt to perpetrate, any arson, rape, robbery, 
or burglary, shall be deemed murder of the first degree ; and all other 
'kinds of murder shall be deemed murder of the second degree. The 
punishment of murder in the second degree, is imprisonment in the State 
penitentiary, for a period not less than four, nor more than twelve years." 



^gg THE FORUM. 

he was forty years Old. He was buried at St. Mary's 
diurch, Burlington, and his monument bears the fol- 
lowing inscription, composed by Dr. Charles Wharton, 
a learned divine and rector of the Episcopal church 
referred to : — 



Here lie the remains 

of 

WILLIAM BRADFORD, 

Attorney-General of the United States, 

under the Presidency of Washington, 

and 

previously Attorney-General of Pennsylvania, and a Judge of the 

Supreme Court of that State. 

In private life 

he had acquired the esteem of all his fellow-citizens ; 

in^Professional attainments 

he was learned as a Lawyer, and eloquent as an Advocate. 

In the execution of his public offices, 

he was vigilant, dignified, and impartial ; 

yet, in the 

bloom of life ; in the maturity of every faculty, that could invigorate 

or embellish the human mind ; 

in the prosecution of the most important services that a citizen 

could render to his country ; 

in the perfect enjoyment of the highest honors 

that public confidence could bestow on an individual ; 

Blessed 

in all the pleasures which a virtuous reflection could furnish from the past, 

and 
animated by all the incitements which an honorable ambition could 
depict in the future, he ceased to be mortal. 
A fever, produced by a fatal assiduity in performing his oflicial trust, 
at a crisis interesting to the nation, 
suddenly terminated his public career — extinguished the splen- 
dor of his private prospects, 
and 
on the twenty-third day of August, 1Y95, in the fortieth year of his age, 
consigned him to the grave. 
Lamented, Honored, and Beloved. 



CHAPTER XII. 

WILLIAM RAWLE, L.L.D. 

BORN, APRIL, 1759 — DIED, 1S32. 

William Rawle was bom on the twenty-eighth day 
of April, 1759, of honorable and distinguished parent- 
age, of the Society of Friends; yet their proudest 
distinction (we say it with no disparagement,) was in 
giving birth to such a son. The earlier years of his 
life were passed in the acquisition of the rudiments of 
education, and those subhme principles of elevated 
religion and morality, which were in after times ma- 
tured into the most devout and exemplary piety. At 
the age of nineteen, having passed through the various 
stages of preliminary instruction in his native land, and 
having for some years been engaged in prosecuting his 
legal studies under Counsellor Kemp, a learned jurist 
of our sister city of New York, just before the com- 
mencement of the American Revolution, he visited the 



500 THE FORUM. 

mother country, for the purpose of perfecting himself 
in the arduous duties of the profession for which he 
was designed. In London, he was regularly installed 
as a Templar, and there pursued his studies with that 
untiring zeal and assiduity which ever signally marked 
his career through a subsequent brilliant practice of 
more than half a century. Had he remained in Europe, 
what scope is there for speculation as to the heights he 
would have realized ? In such a realm, is it venturing 
too far to say, that a coronet was not above his grasp ? 
What was there in the pretensions of a Copley, beyond 
the compass of his mind ? What was there in their 
birth or early hopes, that lent stronger claims to ad- 
vancement ? What was there in their morals or their 
manners, more exemplary or resistless ? 

In the year 1783, he returned to this country, fuU 
of zeal and hope, a most thorough and accomplished 
gentleman; a ripe and elegant scholar, an artist, a 
poet, a philosoper ; and, without which all other accom- 
plishments are but dross — a Christian. What a beau- 
tiful, moral, and intellectual picture does such a man, 
at such an age, present ? 

" How must his worth be seeded in his age, 
When thus his virtues bud before their spring ?" 

In person, he was rather above the middle height, 
yet so symmetrical in his proportions as by no means 



WILLIAM RAWLE, L. L. D. ' 501 

to produce that conclusion in a casual beholder. In 
his early life, he must have been eminently handsome, 
for even at the age of seventy-seven years, when he 
died, his features, and the whole contour and expres- 
sion of his face, were such as to inspire every one with 
the strongest veneration and regard.* The formation 
of the upper part of his head, which rose like a tower, 
was such as might delight and fascinate the phrenolo- 
gist ; but it is to the internal structure of the man that 
our attention is to be directed, and that all must rejoice 
to turn. 

On the fourth day of September, 1783, he was ad- 
mitted to practice in the Supreme Court. 

He launched at once into the busy and tumultuous 
tide of a diversified professional life. He took his post 
where nature and education both placed him, in the 
very front rank of the profession. He maintained his 
ground with such men as Lewis, and Wilson, and 
Tilghman, and IngersoU, and Dallas, and gathered in 
his forensic career, " golden opinions from all sorts of 
people." There never was a more enlightened and 
unblemished advocate, or a more conscientious and 
valuable citizen, than the subject of this memoir. 

With a spirit that would have done credit to the 
best ages of chivalry, tempered by the most bland and 

* There is an admirable portrait of him, at the age of seventy, in the 
Law Library, painted by Inman, by order of the members of the Phila- 
delpliia bar. 



502 THE FORUM, 

courteous manners ; with a princely income, derived 
from his private fortune and professional emoluments, 
and with a soul alive to all the sympathies and chari- 
ties of hfe ; surrounded, in the progress of time, by a 
large, devoted, and lovely family, he stood the very 
centre of the social circle, and his influence radiated to 
the extremest verge of benevolence and hospitality. In 
his social mtercourse, no stranger would have supposed 
him to be a lawyer. So nicely blended were all the 
accomplishments of this great man, with each other, 
that while the combination was perfect, each integi^al 
part of his character was so beautiful in itself, as to 
impart lovehness to all around it, and thereby lose 
anything like distinctive or individual claims to our 
attention. Like the grouping of the statuary of Phi- 
dias or Praxitiles, each particular figure would seem 
to lose its individuality, in its contribution to the 
general beauty and harmony of the design. Or, still 
more clearly to express the idea, in the language of 
one that never fails — 

" His life was gentle, and the elements 
So mixed in him, that nature might stand up 
And say to all the world, — ' This was a man.^ " 

The life of a professional man is like the waves of 
the ocean — a scene of constant agitation — ever chang- 
ing and still ever the same. To-day, the tempest may 
rage and the sea run mountain high : to-morrow, it may 



WILLIAM RAWLE, L.L.D. , 503 

be as smooth and placid as ere winds began to blow : 
but the eternal depth of waters ever remains the same. 
So with professional life. In ordinary pursuits, the 
cares of men may be considered as limited to their 
own immediate concern; and although in a state of 
society no one can be perfectly free from, or indepen- 
dent of, a participation in the common liabilities of 
the community, yet the very vocation of a lawyer in 
extensive practice, and properly alive to his duties, 
renders him peculiarly the dej)ository of the cares 
and anxieties — the fame and the fortune — the liberty 
and hves of thousands, who may have confided in liis 
integrity and talents. The bosom of an affectionate 
family may afford relief for private care ; for private 
suffering, and sympathy by sharing in our afflictions, 
alleviates the load; but the griefs and penalties of a 
lawyer are to be borne by himself alone. He has not 
even the melancholy privilege of imparting them to 
others, even the cHent who consults with him, dis- 
charges his own sorrows upon the bosom of his profes- 
sional adviser, and, strange as it may appear, really 
enjoys a comparatively happy and enviable position. 
The doctor, perhaps, more nearly approaches to the 
feelings and condition of the lawyer than the profes- 
sor of any other science. But even he is far, far re- 
moved from the anxieties of the legal profession. 
Under the effect of bodily pain, and the grievous loss 
of relatives and friends, most men groan alike, but 



50^ THE FORUM. 

how various and diversified are the manifestations of 
the afHictions of the mind. There are mental suiFer- 
ings that far exceed the most poignant pains of the 
body, and which would willingly be exchanged for 
even the horrors of death itself. These, for the most 
part, form the business, nay, the very life of a lawyer, 
and especially the advocate. The sanctity of his office 
is more than equal to that of the confessional itself. 
Necessity here rends the mask from hypocrisy ; and 
grief and penitence, remorse and shame assume their 
true features. 

How much reputation, how many fortunes, how 
many lives depend, upon the fidelity of counsel ? 
Bearing with him through fife the consciousness of the 
weight of this responsibility — occupied and distracted 
by a thousand cares — subject to daily competition and 
Kable to daily defeats, is it not truly wonderful that 
E.AWLE should, nevertheless, have possessed the power, 
which he did in an eminent degree, of abstracting the 
mind from these annoyances of life, and adapting him- 
self to all the phases and varieties of social and fami- 
liar intercourse. This may be considered an almost 
infalHble test of true greatness of soul. Proficiency in 
any art or science is more than counterpoised, if it 
result in divesting the heart of those social and affec- 
tionate properties which endear mankind to each other, 
and constitute the chief charm of human life. By an 
exclusive devotion to law, medicine, or even theology. 



WILLIAM RAWLE, L.L.D. 505 

almost any one may become a great divine, an eminent 
physician, or a distinguished jurist, but still be far, 
very far removed from a great man. True greatness 
camiot exist without sympathy between head and 
heart, and their reciprocal contribution to the employ- 
ments of each other. It was by such sympathy, that 
the beautiful and harmonious combination was formed, 
which was presented in the life of the deceased. 

In 1791, he was appointed District Attorney of the 
United States by the Father of his country, from which, 
shortly after the election of Mr. Adams, he resigned, 
having continued in office about eight years. The 
situation of Attorney-General, was more than once ten- 
dered to him by Washington, but as often declined, as 
being calculated to interfere with those domestic en- 
joyments for which no public preferment or profit 
could furnish an equivalent : and the President was 
himself too much alive to the influence of retirement 
and domestic virtue, to demand a sacrifice from ano- 
ther which he himself so reluctantly made. 

An appointment to so high a trust, and from so pure 
a source, and at the age of thirty years, when most men 
are unknown, is an abundant indication of extraordi- 
nary merit ; and the fidelity and ability displayed by 
him during the continuance of office, more than con- 
firmed the exalted expectations which gave rise to the 
appointment ; and in all modesty it may be said, that 
never before nor since that time, have the interest and 

VOL. I. — 33 



gQg "^ THE FORUM. 

dignity of the United States been more signally repre- 
sented or more scrupulously maintained. He, as has 
been said, was not simply a laivyer. A mere lawyer is, 
at most, hut the moiety of a man — heartless and soul- 
less \ his exclusive devotion to a stern and unfeeling 
science, blunts all the finer emotions of his nature, and 
at length he becomes, like Coke, the scourge of his 
own family, and the relentless and ferocious adversary 
of genius and generosity. 

With Rawle, the law was but one of the elements in 
the proud structure of liis eminence. The whole circle 
of the arts and sciences was tributary to his formation. 
In painting and sculpture, his taste had been modelled 
by the best standards ; and in the former of those arts, 
there were but few amateurs that could excel him. 
Of poetry, he was a devoted admirer ; and he liimself 
wooed the muses with all the grace and success of a 
legitimate suitor. In philosophy, he was a zealous 
disciple ; and his beautiful translation from the Greek 
of the Phsedonof Plato, with his own practical com- 
mentary, would in themselves, and alone, suffice to 
protect his name against oblivion. Among the most 
cherished and the most valuable of his works, how- 
ever, and which, I trust, wiU not be withheld from the 
world, are those pertainmg to the subject of religion. 
His " Essay upon Angelic Influences" is replete with 
the most fascinating speculation and the soundest re- 
flection. Nor is his discussion of the subject of '' Ori- 



WILLIAM RAWLE, L.L.D. 507 

ginal Sin and the virtue of Baptism," although less 
elaborate, undeserving of the highest regard and en- 
comium. Added to these, there is to be found among 
his manuscripts an argument of the most polished and 
cogent character, the object of -which is to show that 
there is sufficient proof of the truth of Christianity, to 
be derived from the parables of our Saviour alone. 

Neither time nor space will allow us to enter into 
a critical dissertation upon the merits of these works. 
A few extracts,j^alculated to impart a knowledge of 
the character of the author's mind, will suffice for 
the present purpose. In the treatise upon original 
sin, after having carefully considered the various doc- 
trines of Ashmead, Townsend, the Bishop of Boches- 
ter, Doddridge, Wilberforce, and others, he thus con- 
cludes : — 



" I have sometimes asked myself, of wliat use are these specu- 
latire inquiries ? Is it of any consequence to a practical Christian, 
whether punishable sin proceeds fix>m Adam, or ourselves ? Whe- 
ther future punishment is to be temporary or eternal ? Is not the 
duty of every individual the same ? Is it not his duty to act justly, 
to abstain from all crime, to repent of former offences, to believe 
in Christ, to observe and fulfil his precepts, to worship, love, and 
fear Grod? In all these, every sect concurs." 



The translation of Phsedon, which has been referred 
to as incomplete, seems to have been commenced 



5Qg THE FORUM. 

purely with reference to the doctrine of Plato, upon 
the " Immortality of the Soul f but, to use his own 
language, the translator, upon a careful examination, 
found so much of it directed to points below what he 
expected from the high interest of the subject, that 
after a time he relinquished the undertaking. Even 
in its present imperfect condition,- however, it is a 
treasure that ought not to be withheld from the public. 
His notions on the subject of religion were in some 
respects smgular ; but, at the same time, so simple and 
so pure, as to bear conclusive evidence of the simphcity 
and beauty of liis mental structure. He was an un- 
qualified admirer of the service of the Church of Eng- 
land, but at the same time expressed his doubts as to 
the efficacy of its formal, regular, daily repetition. To 
use his own language : 

" The congregation comes forward meclianically, to repeat tte 
same thouglits in the same words. The sweet influence of Jesus, 
as applicable to our individual conditions, our afflictions, or our 
causes for thanksgiving, is absorbed in one general mass. If we 
join in it, we may lose sight of ourselves ; if our hearts do not join 
in it, we are deceivers. We are hurried on too rapidly for reflec- 
tion ; without time for internal communion with the Divine Being, 
who is invisibly present, we accept and use the work of man, instead 
of that spiritual co-operation, which we are instructed by his own 
words to expect from him." 

Nor, although he preferred, did he entirely approve 



WILLIAM RAWLE, L.L.D. ' 509 

the mode adopted in the worship of the Friends, of 
which religious persuasion he was born, and long con- 
tinued a member, and always a strict adherent. He 
inclined to the opinion that some appropriate passage 
from those inexhaustible sources of light and love, the 
Old and New Testament, should be introduced into 
their service, upon the assemblage of the congregation, 
in order that they might be solemnly and sacredly 
impressed with the importance of the subject, in refer- 
ence to which they had been convened ; in other words, 
that they might be brought into tone and keeping with 
the occasion. To remedy this defect in the form of 
worship, for many years of his life, as appears from 
his journals, it was his habit, before attending the 
house of God, to read some portion of Holy Writ, and 
to engage deeply in "felt, but voiceless prayer," before 
the throne of the Most High. 

The favorite theory of this extraordinary man, was 
that which related to angelic influences, and the imme- 
diate agency of the Deity in all the concerns of his 
fallen creatures. After infinite reading, as his notes 
and commentaries show, upon these subjects, his mind 
settled down upon the conviction that, in aU our walks 
through life, we were accompanied by good and bad 
angels, and that the Almighty and the Saviour of the 
world were everywhere present; all-pervading, not 
only in the churches where two or three persons had 
assembled together in their holy name, but in the 



510 



THE FORUM. 



seclusion of the study, and tlae more active pursuits of 
public life. He thus concludes Ms elaborate examina- 
tion into tlie truth of this doctrine : — 

" Awful, but most consolatory tliouglit ! WHerever I am, God 
is ! wlierever I am, Jesus also is ! Here, tten, iu my chamber, 
where I sit, is Grod ! bere also, is Cbrist ! Let me ever retain this 
impression. Let me ever consider tliem as present at all my actions, 
and as reading and knowing all my thoughts. May I not, under 
this daily inspection, gradually purify my polluted heart, and amend 
my erring life ? Blessed Saviour, assist me so to do !'^ 

And again, in considering the same subject, a short 
time before his death, he exclaims : — 

" Gracious God, Jesus Christ, Saviour of man ! let me, a mise- 
rable sinner, hope for that mercy which will ope for me the cham- 
ber of blessedness. God is ever present. Jesus Christ is ever 
with us. They know my most secret thoughts. How often, not- 
withstanding all my efforts, are those thoughts unworthy' of such a 
presence ? Oh, may I be able to purify the mind ! Let me figure 
to myself, that my thoughts are words uttered in the hearing of my 
Saviour and my God — will it not restrain them ? Shall I not at 
once perceive how flagrant it would be, in such language to address 
my Lord, my Saviour, my blessed Jesus ? Oh, thou benevolent 
and powerful Being, who hast perhaps infused into me these awful 
impressions, aid and strengthen me to execute them as they ought 
to be, in the full sense of thy goodness, and in the humble venera- 
tion of thy name ! Let me in future always consider thy divine 
figure as present, although invisible. Let me endeavor to enter 
into sweet communion with thee. How rapturous the thought I 



WILLIAM RAWLE, L.L.D. ' 5^1 

And liow can I fail, if I steadily pursue it ? How can I fail to 
amend my heart?" 



For full twenty years before his decease, we think 
we are able to say, from a close perusal of his journal, 
his mind voluntarily took no direction that might not 
readily be traced to devotion to its God ; and the 
prayers alone to be found in his works, would form an 
admirable model for domestic piety. With a single 
other instance, furnished during the deepest mental 
suffering, I will temporarily take leave of this deeply 
interesting portion of his history : — 

" Lord Grod ! wlio liatli been pleased to create me ; wlio, among 
the uncounted millions of thy works, hath vouchsafed to include 
me, a weak, imperfect, miserable being; have pity on this thy 
work. Enable me, oh, holy parent ! in some degree to appreciate 
thy greatness and thy goodness ; and while I know thy power, and 
fear to incur thy wrath, enable me, oh. Lord ! to lift up to thee 
my humble reverence and gratitude. Oh, may my afflictions 
purify my heart ! may my sorrows, when in thy wisdom I shall be 
sufficiently punished, be alleviated or removed ! and whenever it 
shall please thee to grant these prayers, may my thankfulness be 
equal to, — may it unboundedly surpass the depth of my afflictions." 

On the twenty-seventh of First month, (January,) 
1792, he was elected an honorary member of " The 
Maryland Society for promoting the AboUtion of Sla- 
very;" and on the sixth of Tenth month (October,) 



512 THE FORUM. 

of the same year, became a member of tbe Penn- 
sylvania Society, devoted to similar objects. 

From that time, until the hour of his death, he was 
one of their most active and invaluable counsellors. 
His great professional success was frequently the sub- 
ject of votes of thanks from the institutions to which 
he was attached, and became matters of peculiar 
notice, when, in the spring of 1805, he, together 
with Mr. Jared IngersoU and Mr. Wilham Lewis, ar- 
gued before the High Court of Errors and Appeals of 
Pennsylvania the great question, as to the constitu- 
tionality of the existence of slavery in this State. 

In the month of March, 1818, upon the decease of 
Dr. Caspar Wistar, another of the Theban band, Mr. 
Rawle was unanimously elected President of the So- 
ciety, and so continued until the hour of his death. 
How deeply he commiserated in the condition of the 
unliappy bondsmen, a life of generous devotion to the 
mehoration of that condition abundantly shows. 

His struggles in behalf of those who were incapable 
of struggling for themselves were constant and un- 
wearied. In such a contest, which he nobly sustained 
for upwards of forty years, what could support liim ? 
Nothing, but the buoyant consciousness of undeviating 
rectitude. Por such unceasing efforts what could re- 
ward him ? Nothing, but the cheering smiles of ap- 
proving heaven here, and its measureless glories here- 
after. The objects of liis bounty were those from 



WILLIAM RAWLE, L.L.D. 5]^3 

whom lie could expect no return : they were of the 
proscribed and outlawed race ; and even while vindicat- 
ing their violated rights, he, himself, in the eye of their 
oppressors, was often condemned to share in their 
odium, and almost partake of their penalties. It re- 
quired no ordinary mind, no common-place influences 
thus, at the same time, to encounter the shafts of pre- 
judice and pride, in behalf of a class of men, who, fet- 
tered themselves, could impart no aid to the conflict, 
no consolations to the vanquished, no troj)liies to the 
victor. What laurels shall spring from the barren and 
arid soil of Africa ? What reward shall her benighted 
and enslaved children bestow, to requite past exertion 
or stimulate to renewed efforts, while every where 
confronted by danger — every where disheartened by 
dismay? For such devotion there can be but one 
motive, and that is humanity : there can be but one 
recompense, and that is the blessing of the bleeding 
and broken heart, upon which the soul shall be wafted 
to the bosom of its God. His doctrines upon this 
subject, which were the doctrines of Frankhn, of La 
Fayette, of Rush, of Wilberforce, may be scoffed at 
by some, and condemned by others. They may not 
have been safe doctrines to live by, but they were safe 
to die by. 

In the latter part of the year 1813, I became a 
student in the office of this great, good man. He was 
then about fifty-five years old, and at the very pin- 



g24 THE FORUM. 

nacle of professional distinction. I shall never forget 
our first interview, and, I trust, shall ever feel the in- 
fluence which it tended to exercise over my future des- 
tiny. His examination was directed not, as is usual, 
to mere intellectual or literary attainments, hut to 
moral philosophy and rehgion, " considering these," as 
he at that time impressively said, " not only the basis 
of all human elevation, but the rock upon which our 
eternal hopes must rest." 

What a lovely picture is here presented in this simple 
lesson, to the grave and reflecting mind. A man in the 
very harvest of life, surrounded by all that could dazzle 
or bewilder — wealth — honors — pomp — ^pageantry, and 
pride ; without having incurred a single check in his 
worldly career ; without a spot upon the disk of his fair 
fame ; still looking upon all wordly aggrandizement and 
glory as the affairs of a day, and as utterly vain and 
worthless, except as subjects of gratitude and love to- 
wards that eternal source from which alone can all true 
blessings flow. Addison, it is said, in his dying moments, 
called to him a youth, to whom he was warmly attached, 
and with his latest breath exclaimed, " Behold me, my 
cliild, and learn from my example how a Christian can 
die !" It was a noble spectacle, truly, but much less 
glorious than the example which teaches us how a 
Christian should live. There are few, perhaps, who in 
the extremity of life, when brought to see their Maker 
face to face — there are very few we trust — who would 



WILLIAM RAWLE, L. L. D. 5]^5 

not feel and sjoeak like Addison ; but the great tests and 
touchstones of devotion and piety, are the wordly entice- 
ments and fascinations of a vigorous and successful life. 

The world spent its quiver, and pleasure exhaust- 
ed her howl, upon the subject of this brief memoir. 
He still remained invulnerable and unseduced, and 
in the benevolence and philanthrophy of his nature, 
sedulously endeavored to impart those vu-tues to 
others which his own heart eminently possessed, and 
without which men are at best but "gilded loam or 
painted clay." 

Let it not be understood that he was an ascetic. A 
more colloquial, sprightly, or famiUar companion to the 
young or the old, the scholar or the ilhterate, the dis- 
tinguished or the humble, would be sought for in vain. 
Keadily adaj^ting himself to the condition of all, like 
his great wordly model, Washington, whom, in many 
respects, indeed, he closely resembled, he could erect 
himself to any height without straining his natural 
proportions, or reduce himself to any level without 
compromising his innate dignity and worth. We have 
been present at his interviews with hereditary lord- 
lings and immediate representatives of foreign mon- 
archs; men who had been taught to beheve that aris- 
tocracy was confined to themselves, and who strutted 
and glittered in the stars of their several orders. His 
star, was the Star of Bethlehem. His order was the 
order of the king of Kings, and he looked upon all 



51g THE FORUM. 

tinselled wordlings as mere actors in the drama of life 
— necessary to various parts of our transitory exist- 
ence — entitled to respect from the social or pohtical 
position they might occupy, but still to be gTaduated 
and adjusted in their several pretensions by the mind 
— ^the only true standard of the man. Tested by that 
standard, what competition could he fear ? 

But it is the bright day that brings forth the adder. 
Affliction at some period of life is the lot of all men. 
Perhaps it is even necessary to men, in order that they 
may feel the power, as well as enjoy the blessings, of 
a bountiful Creator. ^^What, shall we receive good at 
the hands of God, and shall we not receive evil?" 
Rightly understood and applied, the chastening influ- 
ence of heaven is much more salutary to the soul than 
a harmonious and uninterrupted current of happiness. 
But the first shock — the first revulsion that the bark 
of fife sustains, while gaily and majestically gliding 
before the wind, and with all sail set, over hope's 
mountain wave, is awfully terrible ; it is the contact 
of man with the Omnipotent, and human nature reels 
and trembles to its very centre. 

In the year 1815, fate dashed the cup of happiness 
from the lips of our lamented friend. One of his 
daughters, an ornament to society, and the "immedi- 
ate jewel" of her family, in the bloom and redolence 
of health and beauty, and with intellectual charms 
even beyond her personal attractions, was suddenly 



WILLIAM RAWLE, L. L. D. 5^7 

snatched away by death, and left an aching void in 
the heart of the domestic circle, her friends and the 
community, which the alleviating hand of time par- 
tially concealed, but could never repair : — 

" Sweet rose — fair flower, untimely plucked, soon faded ; 
Plucked in the bud, and faded in the spring." 

The painter who exhibited the death of Iphigenia, 
while he disclosed on his glowing canvass the manly 
sympathy of Achilles, and the stubborn grief of Ulys- 
ses, threw a veil over the face of Agamemnon, the 
agonized father, and thereby acknowledged the inade- 
quacy of art to portray the feelings of a parent, upon 
the sacrifice of his child. Let us, then, borrowing in- 
struction from this classic example, draw the curtain 
over those griefs which the heart alone can feel, but 
which an angel's tongue could not express. 

From this loss he never wholly recovered ; but like 
Job, he exclaimed : " The arrows of the Almighty are 
within me, the poison whereof drinketh up my spirit. 
The terrors of God do set themselves in array against 
me." 

Then followed the death of another dear daughter, 
in the prime of youth and beauty; next, his son Henry, 
who had just finished his classical education and en- 
tered upon the study of the legal profession, of which 
he was every way qualified to become a distinguished 



518 THE FORUM. 

ornament; and last and greatest, in the year 1825, liis 
wife, the beloved partner of his bosom, with whom he 
had been joined in affection for upwards of forty years, 
was summoned to her last and blessed abode, lea"\dng a 
doating and bereaved family, to mourn her irreparable 
loss. 

How awful, then, to the survivor, must have been 
the blow that severed them from each other, and which 
left him, like a blighted oak, stripped of his leaves, 
deprived of his branches, and lastly, robbed of that 
ivy which, for nearly half a century, had clung around 
him, attempering the storm, and rendering even desola- 
tion, lovely. This last blow bowed his spirit to the 
earth, but he saw in it the impress of an Almighty 
hand, and m Christian resignation and submission, he 
directed his thoughts from that moment towards those 
blissful regions, where sin and sorrow shall be no more. 
Through all these awful visitations, and up to the j)e- 
riod of his death, he was to be traced, day by day, and 
hour by hour, in the punctilious discharge of his worldly 
duties, but it must have been plain to the attentive ob- 
server, that all his serious thoughts were fixed on heaven. 

To sufferings like these, it might be supposed no 
aggravation could be added -, but in order that you may 
appreciate the entire scope of his fortitude, truth com- 
mands me to relate — and why should we shrink from 
the most splendid moral passage in his history — that, 
in the vicissitudes of life, his large and princely foi- 



WILLIAM RAWLE, L. L. D. 5^9 

tune had been utterly swallowed u]o. He looked upon 
this, also, not merely with the eyes of a philosopher, 
but of a Christian. Thus, the ties of this world were 
severed, one by one, and at the age of seventy years, 
he threw his eyes back upon the ocean of life, to rest 
only upon the 'wreck and ruin of all that could render 
life most dear ; but how glorious must have been the 
rehef, when, withdrawing his view from the vanity 
of all terrestrial things, he placed it upon the inex- 
haustible treasures of the world to come. 

To sum up this hasty and imperfect outline of the 
virtues and afflictions of the departed, we cannot do 
better, than refer to the following beautiful and pathetic 
stanzas, contained in the last of Ms series of journals, 
and which are expressly introduced by him, as appli- 
cable to himself. From having been adopted to convey 
his own impressions of his career in life, they possess 
all the interest of original views, and are therefore 
strongly recommended to our attention and regard : 



" I know not, and I care not how 
The hours may pass me by, 
The' each may leave upon my brow, 
A furrow as they fly. 

" What matters it — each still shall take 
One link from off the chain. 
Which binds me to this grievous stake 
Of sorrow and of pain. 



520 THE FORUM. 

" Time, like a rower, plies his oar. 
And all his strokes are hours, 
Impelling to a better shore 
Of sunshine and of flowers. 

" I've tasted all that life can give 
Of pleasure and of pain, 
And is it living, thus to live 
When joys no more remain ? 

" All nature has had charms for me, 
The sunshine and the shade, 
The soaring lark, the roving bee, 
The mountain and the glade. 

" I've played with being, as a toy, 
'Till things have lost their form ; 
'Till danger has become a joy, 
And joy become a storm. 

" I've loved as man has seldom loved, 
So deeply, purely, well ; 
I've proved what man has seldom proved, 
Since first from bliss he fell. 

" Mine eye again can never see. 
What once mine eye has seen ; 
This world to me, can never be 
What once this world has been. 

" Speed then. Oh speed — my bark speed on, 
Quick o'er life's troubled waves. 
The one that comes — the one that's gone, 
What is beneath them ? — graves." 

Ever bland, courteous and conciliating, his placid 
brow gave no denotement to the idle and curious 



WILLIAM EAWLE, L. L. D. 521 

worlds of those deep furrows which misfortune had 
ploughed in his heart. AHke, unostentatious of joy 
and of grief, he never stimulated envy hy the exhibi- 
tion of the one, nor invited commiseration by mani- 
festing the other. Like the diamond, he grew brighter 
the harder he was rubbed — like the sun, he shone with 
sublimer lustre, while surrounded by the horrors of an 
elemental war. What sight more noble, than to behold 
a man thus struggling boldly with adversity, contest- 
ing the ground inch by inch, and when at last com- 
pelled to submit to liis relentless adversary — if com- 
pelled to submit — bearing with him the consciousness 
that he had employed all the powers he possessed 
against the ills of hfe, or at all events, never turned 
traitor to himself, or deserted his post. 

There is but one situation in hfe superior to that 
of a rich man generously appropriating his wealth to 
the melioration of the afflictions of the poor and the 
wretched — and that is the condition of the unfortu- 
nate man, who tramples upon the toils and contemns 
the vicissitudes of this life, except so far as they may 
be considered preparatory to the enjoyments of life to 
come. 

Would you see a really great man in his true glory, 
look not for him on the pinnacle of fortune, with the 
world at his feet, and the very heavens apparently 
almost within his grasp ! but behold him standing 
alone, in sad and solitary grandeur, amidst the wreck 

VOL. I. — 34 



522 '^'^'^ FORUM. 

and ruin of all his earthly hopes, with his breast opened 
to the pelting of the pitiless storm, his foot planted 
upon the grave, as the only refuge from his suffering, 
and his eye firmly fixed upon eternity, as his final and 
assured reward. Upon the struggle of such a man, 
even angels may be said to look down with wonder, 
and rejoice in the anticipations of the "just made per- 
fect." 

" Sweet are the uses of adversity." 

No man can fully appreciate his own nature, without 
having known the vicissitudes of life. The lesson of 
sympathy, when taught through our own selfishness, 
is thoroughly taught, and rarely forgotten. The com- 
miseration which the prosperous profess, and some- 
times really appear to feel, for the unhappy, is lovely 
in the sight of men and angels ; but it differs as much 
from the true principles of benevolence, as morahty 
differs from religion. The whole system of morals is 
embraced by religion, but the converse of this propo- 
sition is not true. Rehgion is not necessarily embraced 
even by the most perfect morality ; so, that charity 
which we extend towards the wretched, becoming, as 
it always is, is often compounded of influences, all 
working out qualified good to our fellow men, but none 
seated or rooted in the heart. To resort to a simple 
illustration — a regular and formal attendance at Divine 



[WILLIAM RAWLE, L.L.D. 523 

worship is highly moral, and exhibits the most salu- 
tary and commendable example, and imparts no incon- 
siderable advantages to the community in which we 
live; but to ourselves the benefit of this external 
homage is less than nothing, unless it be accompanied 
by spiritual devotion. That man who himself has suf- 
fered, and suffered deeply, feels the full sense of hu- 
man obligation; he does not merely shake his superflux 
to the victim of indigence, but he warms him into re- 
newed life and hope, by the genial influence of a sym- 
pathetic heart. He does unto others as he would be 
done by — and he does it, too, not for this world only, 
but with reference to his duty towards heaven. Such 
was his charity. 

In September, 1827, he received the degree of Doc- 
tor of Laws from Princeton College, and in the follow- 
ing year, a similar degree was conferred upon him by 
Dartmouth University, and a short time before his 
death he was apphed to hj the last named institu- 
tion, for a third edition of his valuable work upon 
Constitutional Law, which had been adopted as a 
text book, in many of the institutions of learning in 
the United States. At the time of this application, 
however, his mind was no longer with this world, but 
in close communion with its Maker : the proposal, 
therefore, was declined. 

For many, many years of his life, as has been 
said, he had drunk deeply from the springs of gene- 



524 THE FORUM. 

ral literature and science ; but as he approaclied the 
fount of eternal light and love, all other enjoyments 
became comj^aratively insipid, and within the last year 
of his' hfe, while sitting by his bedside — knowing his 
fondness for books — I inquired, whether there was 
any thmg I could supply him with, from the limited 
stores of my library ? "Yes," replied he, "any books 
you may have upon the subject of rehgion will be 
most welcome to me, as preparatory to the great 
change that rapidly approaches. General readmg is 
adapted only to general objects — my attention is now 
dkected solely to one, and that is, ^to make my calling 
and election sure.'" This was not uttered in the 
way of repining at the idea of approaching dissolu- 
tion, or remorse for former misappropriation of time, 
but in the meekness and firmness of a Christian ap- 
proaching the judgment-seat of his God. He seemed 
neither to seek nor shun his fate, considering both 
equally reprehensible ; but awaited, with apparent and 
most admirable composure, that awful mandate which 
should summon him from time to eternity — from cor- 
ruption to glory — from among mortals to his kindred 
saints. 

In the last of his journals, in a treatise upon life, he 
uitroduces the only passage which we have been able 
to find, indicating a desire of a change of condition : 

" Is it lawful/' says lie, " to wish for deatli — merely to wish — 



WILLIAM RAWLE, L. L. D. 525 

without doing anything to accelerate it ? Such wishes may pro- 
ceed rather from the pressure of affliction, from a sense of the 
vanities of the world, or from an earnest desire to partake, as soon 
as possible, of the joys of immortality. The two latter form my 
case. There is very little indeed to bind me to this world — nothing 
except my beloved children. To them my departure, whenever it 
may happen, will no doubt be cause of grief; but time assuages 
sorrow, and in a little while the memory of me will perhaps be a 
pleasing melancholy, succeeding to the first violent emotions. For 
my transition, I hope I am not wholly unprepared. I endeavor 
every day to increase my readiness to go. Thou, God I kuowest 
how often I think of thee, how often I pray thee to increase my 
love for thee, and to enable me to steer clear of giving thee oifeuce. 
Adieu, then, my earthly friends I adieu, my beloved children ! 
Weep not for me V 

Throw the mind back upon the brightest pages of 
the history of man — to Themistocles, to Hannibal, or to 
those who "played the Roman fool, and died on their 
own swords." Looking at those illustrious models, 
through the dense and misty medium of centuries, and 
the flattering glass of eulogy, they strike the yiew as 
the ruins of the noblest men that ever lived in the tide 
of time. But strip them of their adventitious glory ; 
contemplate them as they really were, and tell us, if 
you can, wherein they excel — in prosperity, or adver- 
sity — in morals, or in intellect — in virtue, or in philo- 
sophy — in private, or in public life — this lamented 
citizen of the American Kepublic. 

It is ever the disposition of men — and perhaps it is 



526 THE FORUM. 

mainly attributable to tlie course of early education — to 
look for their examples to those remote periods, which 
exhibit the virtues of their heroes, their statesmen, and 
their scholars, without depicting their faults. Nor is 
it objectionable that it should be so. Impressions con- 
veyed to the youthful mind, through this somewhat 
illusory medium, are calculated to create an exalted 
standard of human nature, and to inspire the soul with 
that spirit of emulation, which would seldom be pro- 
duced by living or modern examples. Yet, neverthe- 
less, let us not strip the well earned laurel from the 
new made grave, to bedeck the ancient monuments of 
the mighty dead. Single out from the most resplend- 
ent pages of classic story, the proudest models of human 
excellence ; trace them through the fluctuations of time ; 
mark them in the hour of prosperity ; test them by the 
touchstone of adversity ; contemplate them in a strug- 
gle with the grave — wdiere then is their philosophy — 
where then their glory ? 

" To live with Fame 
The gods allow to many ; but to die 
With equal lustre, is a blessing Heaven 
Selects from all the choicest boons of Fate, 
And with a sparing hand on few bestows." 

In the aU-trying hour of death, how many heroes 
have dropped their masks, and shrunk to less than men ? 
Lycurgus, the renowned Spartan law-giver, fell a time- 



WILLIAM RAWLE, L. L. D. 527 

less victim to his own measureless vanity. The inflexible 
Cato, in the hour of disaster and distress, meanly de- 
serted his post, and rushed, uncalled for, to the judg- 
ment seat of his God. Brutus — the patriot Brutus — 
the magnanimous deliverer of Borne — instead of en- 
during misfortune — instead of buffeting the billows of 
adversity, and riding out the storm, ingloriously 
plunged into the gulf of eternity, and converted his 
own passions into the evil genius of Phihppi. Such is 
worldly philosophy. Contrast for a moment its prac- 
tical results with those of the religion inculcated by 
the meek and lowly Saviour, and practised by his dis- 
ciples and his followers. The difference is this — the 
one is the offspring of this world alone, and dies in the 
death of the objects that inspired it. The other is hea- 
ven-descended and heaven-protected. Its source, and 
duration, and reward, are eternal. The Christian lives 
in this world, but not for this world ; and he dies as 
he lives, for a world to come — patiently submitting to 
his doom, neither hastening or shunning it; but like a 
faithful sentinel, unmurmuringly awaiting the order of 
his great commander, " Who wills to do, or to undo, in 
his own good pleasure." 

For upwards of a year before his translation to more 
kindred and congenial climes, while chiefly confined to 
that bed, which proved to be the bed of death, it was 
my privilege to have frequent opportunities of seeing 
and conversing with him. What a solemn and sublime 



528 '^'^^ FORUM. 

sight ! His wliole soul had become concentrated and 
fixed on things above, " and, growing purer as it looked 
towards Heaven, was fashioned to its journey." He 
passed from works to reward, on the twelfth day of 
April, 1836. 

" Niglit dews fall not more gently on tlie ground, 
Nor wearj, worn-out winds expire so soft." 



CHAPTER XIII. 

ALEXANDER JAMES DALLAS, L.L.D. 

BORN, JUNE 21, 1759— DIED, JANUARY 16, 1S17. 

Alexander James Dallas was a native of Jamaica, 
(Barbacloes.) Born on the 21st of June, 1759. He 
received the rudiments of his education at Edinburgh 
and afterwards entered Westminster school, and became 
a pupil of Elphenstone, well known from his translation 
of the Mottos to Johnson's " Rambler," and other peri- 
odical essays. 

Mr. Dallas's father, Robert Dallas, was from Scot- 
land, and rapidly became a very eminent and wealthy 
physician. 

In 1780, the son married a lady of Devonshire, Eng- 
land, and in 1781, shortly after the death of his father, 
accompanied by his wife, he left England for Jamaica. 
Upon his arrival, it was found that the father's large 
property had been left to the disposition of Ms widow, 
who had married again, thereby depriving the subject 
of this memoir of all hopes of an inheritance. What, 
no doubt, was then considered by him a misfortune, 



530 THE FORUM. 

in its results, probably proved to be a blessing — ^for it 
threw him upon his own energies and resources, and 
contributed to make him, what he finally became, one 
of the ablest lawyers and most accomplished gentle- 
men of the Philadelphia bar. 

In disappointment, though not in despair, he left 
Jamaica in the month of April, 1783, and arrived ia 
Philadelphia on the 15th of June in the same year. 
This voyage was made principally for the benefit of his 
wife's health, and with a view merely to a temporary resi- 
dence in the United States. He, in a short time, how- 
ever, became enamoured of our republican institutions, 
and with all his heart, adopted the land of liberty as 
his permanent abode. Three days after his arrival, on 
the 17th of June, he took the oath of allegiance to the 
State of Pennsylvania, and ever afterwards resided in 
Philadelphia, except while acting at Washington as 
Secretary of the Treasury. 

From the time of his arrival, he was assiduously en- 
gaged in preparing himself for admission to the bar, 
and, the thu^d day of August, 1785, was admitted to 
practice in the Supreme Court of Pennsylvania, and, 
in a short time, gradually became a practitioner in all 
the Courts of the United States. 

His practice at this early period, of course, not being 
extensive, he prepared his Reports* for the press, and, 

* Reports of Decisions of the United States Circuit Court, and SujDreme 
Court of Pennsylvania. 



ALEXANDER JAMES DALLAS, L.L.D. ^^^ 

possessing the liighest literary taste, also contributed 
largely to the literary magazines of the day. 

On the 18th of January, 1791, he was appointed 
Secretary of the Commonwealth of Pennsylvania, by 
Governor Mifflin, a man for whom he always enter- 
tained the highest regard, and out of respect and friend- 
ship for whom, he gave to his son, the present Minister 
to England, the name of George Mifflin. 

Thus brought into early and favourable notice, other 
honorable testimonials were conferred upon him. He 
became a member of the Philadelphia Society, the St. 
George's Society, and, in 1794, a trustee of the Uni- 
versity of Pennsylvania, of which, at that time, the 
^ Keverend Dr. Rogers was the provost; and, it was 
generally known, that the discourse delivered by the 
reverend provost upon his installation, and which was 
considered a masterpiece of its kind, was the produc- 
tion of Alexander James Dallas. 

In September, 1793, his commission as secretary 
was renewed; and, not long after, he became pay- 
master-general of the forces engaged against the insur- 
rectionists, and accompanied the expedition to Pitts- 
burg. Upon this service he was eminently useful, and 
received the highest approval of Washington. 

In December, 1796, the trust of secretary was again 
confided to him. This intimate connection with the 
executive for so long a period, imparted to him a know- 
ledge of men and public officers of the state, which few 



532 THE FORUM. 

ever enjoyed. While liolding this office, he published 
a valuable edition of the laws of the commonwealth, 
accompanied with copious notes — an evidence at once 
of great industry and ability. 

In Blount's case, before the Senate of the United 
States, referred to in the sketch of Mr. Ingersoll, Mr. 
Dallas, in 1799, then but fourteen years at the bar, 
made an able and eloquent defence, of which the fol- 
lowing extracts furnish an imperfect specimen. 

Mr. Dallas proposed to establish two points : — 

"1. That only civil officers of tlie United States are impeaclia- 
ble, and that the oiFenceSj for which an impeachment lies, must be 
committed in the execution of a public office. 

"2. That a Senator is not a public officer, impeachable within 
the meaning of the constitution • and that, in the present instance, 
no crime or misdemeanor, is charged to have been committed by 
William Blount, in the character of a Senator. 

"The necessity of discussing the first branch of this proposition 
could hardly have been anticipated : but, as the Honorable Manager 
had contended, that the constitutional grant of a power to institute 
and to try impeachment, extends, ex vi termini, and to every descrip- 
tion of offender, and to every degree of offence, a just respect for 
the high authority which he represents, as well as for the talents 
which he has displayed, compelled the defendant's counsel to follow 
him into the wide field of controversy, that he has unexpectedly 
chosen. A claim of jurisdiction so unlimited, embracing every 
object of the penal code, annihilating all discrimination between 
civil and military cases, and overthrowing the boundaries of Fede- 
ral and State authority, ought, surely, to have been supported by 
an express and unequivocal delegation : but, behold, it rests en- 



ALEXANDER JAMES DALLAS, L.L.D. 533 

tirely on au arbitrary implication, from the nse of a single word; 
and wliile the stream is thus copious, thus inundating, the source 
is enveloped (like the sources of the Nile) in mysteiy and doubt. 

''The Constitution declares, that 'the House of Representatives 
shall have the sole power of impeachment;' and that 'the Senate 
shall have the sole power to try all impeachments :' Hence, it has 
been urged, that as there is no description of the offenders or 
the offences, in the Constitution itself, where the power is vested, 
every offender and every offence, impeachable according to the 
common law of England, must be deemed impeachable here ; and 
it is alleged that the common law power of imj)eachment extends 
to every crime or misdemeanor that can be committed by any sub- 
ject in, or out of office. But 3Ir. Dallas insisted, that this doctrine is 
contrary to the principles of our Federal compact ; that it is contrary 
to the general policy of the law of impeachments, and that it is also 
contrary to a fair construction of the very terms of the Constitution. 

" That the doctrine is contrary to our Federal compact, he de- 
duced from the design with which the government of the United 
States was established : For, although it is in some of its features 
federal, in others it is consolidated ; in some of its operations it 
affects the people, as individuals ; in others it applies to them in 
the aggregate, as States ; yet, in every view, all the powers and 
attributes of the national government, are matter of express and 
positive grant and transfer; whatever is not expressly granted and 
transferred, must be deemed to remain with the people, or with the 
respective States ; and as the motive for establishing the Federal 
Constitution arose from the want of a competent national authority, 
in cases in which it was essential for the people inhabiting the 
different States .to act as a nation, so far the people gave power to 
the Federal Grovernment : but the delegation of that power is evi- 
dently limited by the reason which produced it. Thus, in the 
creation of a national judiciary, we find that in criminal, as well as 
civil cases, no authority is vested in the courts, but upon the ap- 



534 THE FORUM. 

propriate subjects of national jurisprudence. Constitution, Art. 1, 
§ 1, Art. 3. Crimes and misdemeanors, which, have no connection 
with national objects, are left to be prosecuted and punished under 
the laws of the State in which they are committed ; and yet it is 
asserted, that for any crime or misdemeanor, which could only be 
thus the object of State jurisdiction, which could not be tried upon 
an indictment in any federal court, a State officer, or a private 
citizen, may be impeached before the Senate of the United States ! 
The mere investment of a power to impeach, and to tiy impeach- 
ment, is considered as an instrument destined to carry the govern- 
ment beyond its natural sphere, and to give to the censorship of 
the Senate, a scope and efficacy, of which the general judicial au- 
thority of the Union does not partake. 

"But the Honorable Manager having referred to the English 
common law, for an exposition of the import and operation of the 
power of impeachment, Mr. Dallas contended, that the United 
States, as a federal government, had no common law, in relation to 
crimes and punishments, and cited the opinion of a judge of the 
United States on the subject. 

"The crimes punishable under the authority of the United 
States, can only be such as the Constitution defines, or acts of Con- 
gress shall create, in order to effectuate the general powers of the 
government. How, he asked, did the government of the United 
States acquire a common law jurisdiction in the case of crimes, and 
by what standard is the jurisdiction to be regulated ? When the 
colonies of America were first settled, each colony brought with it 
as much of the common law as was applicable to its circumstances 
and it chose to adopt ; but no colony adopted all the common law 
of England, and there was a great diversity, owing to local and 
other circumstances, in the objects and extent of the common law, 
which the different colonies adopted. The common law is, there- 
fore, the law of each State, so far as each State has chosen to adopt 
it: but the United States did not bring the common law with 



ALEXANDER JAMES DALLAS, L.L.D. 535 

them; there are no express words of adoption in the Constitution; 
and if a common law is to be assumed by implication, is it to be the 
common law of the individual States, and of which State ? Or is 
it to be the common law of England — and at what period ? Are 
we to take it from the dark and barbarous ages of the common 
law, with all the feudal rigor and appendages, or is it to be taken as 
it has been ameliorated by the refinement of modern legislation ? 
Would it not be absurd to refer us to the ancient common law of 
England ? And if we are referred to it, in its improved state, do 
we not rather adopt the statutes, than the common law of that 
country ? And is the common law to fluctuate forever here, as it 
may fluctuate there 1" 



On the election of Governor M'Kean, in 1799, Mr. 
Dallas received tlie commission of Secretary, for the 
fourth time. He continued in tliis post until the 9th 
of March, 1801, when he was appointed by Mr. Jeffer- 
son, Attorney of the United States, for the Eastern 
District of Pennsylvania, and of course resigned his 
Secretaryship. 

On the 26th of July, he was, by Governor M'Kean, 
made Recorder of the City of Philadelphia, but re- 
signed shortly after ; the two posts, under the laws of 
Pennsylvania, being deemed incompatible. 

Mr. Dallas was one of the democratic party, and an 
active and zealous politician, and so continued to the 
hour of his death, but he still devoted himself to his 
profession with untiring industry, and received numer- 
ous grateful testimonials, in honor of his professional 



536 THE FORUM. 

exertions in behalf of his party and his clients, at the 
bar and in the legislature. 

In October, 1814, he became Secretary of the Trea- 
sury of the United States, and it has rarely happened, 
that the responsibilities of all those different situations, 
have been more faithfully, more fearlessly, more satis- 
factorily, or more honorably fulfilled. 

On the 13th of March, 1815, he assumed the addi- 
tional trust of acting Secretary of War, in which he 
successfully performed the delicate and somewhat in- 
vidious task, of reducing the army of the United 
States. 

"In the month of November, 1816," says Judge 
Sergeant, one of liis warmest friends and closest ad- 
herents, and himself a distinguished lawyer and poli- 
tician : 

^' Peace being restored, — the finances arranged, — the embarrass- 
ments of the country's medium daily diminishing, and soon to dis- 
appear, under the influence of the bank which it had long been 
laboring to establish; his property insufficient to defray the ex- 
penses of his situation, with a large family still depending on him, 
he resigned his honorable station, and returned to the practice of 
the law in this city. Here he entered upon professional business, 
with the zeal and ardor of youth. His success was immense, and 
his talents as an advocate, were held in requisition, not only at 
home, but in almost every quarter of the Union." 

But in the midst of life we are in death ; in this 



ALEXANDER JAMES DALLAS, L. L. D. 537 

world, our only certain prospect is the grave. And 
while indulging in the fond hope of securing a com- 
petency for his family, too great exposure to cold, 
durmg a great professional exertion, and one, too, in 
which he was subjected to most joainful annoyance, in 
the case of Sinickson's Will, brought on, at Trenton, 
an attack of gout in the stomach, of which he died on 
the 16th of January, 1817, a few hours after reaching 
home. 

Mr. Dallas was a man of the most fascinating and 
courtly manners, and of the most impressive and digni- 
fied personal appearance. He dressed with great taste, 
ordinarily in a suit of olive brown, with small clothes, 
and top boots. He had an abundance of hair, which 
he always wore powdered, and gathered into a bag cue. 
In everything he did, he was the embodiment of grace- 
fulness. He never lost sight of what was due to liim- 
self or others. He would have been distinguished 
among thousands for his stately bearing and placidity. 
His stature was considerably above the middle height ; 
well formed ; rather inclined to corpulency, but not to 
an extent to impair the lightness, grace, and activity 
of his motions. His voice was highly cultivated, but 
rather remarkable for its sweetness and refinement 
than its scope or power. It was not well adapted to 
excited declamation, but was admirably fitted for per- 
suasion. He was a man of great literary and political 
acquirements, and an author and a poet of no mean 

VOL. I.— 35 



538 ^ THE FORUM. 

pretensions. This probably led to the erroneous im- 
pression that he was less of a lawyer than some of his 
eminent cotemporaries. History informs us that a 
similar absurd cry was raised against Lord Mansfield, 
"which gained countenance," says Lord Campbell, 
" only from the envy of the vulgar, who are always 
eager to pull down those who soar above them, to their 
own low level ; and in the legal profession, will assert 
that, if a man is celebrated for elegant accomplishments, 
he can have no law; and if he is distinguished as a 
deep lawyer, that he can have no elegant accomplish- 
ments." This doctrine, however, be it borne in mind, 
is adopted chiefly by those who have neither the one, 
nor the other. 

In his diversified and more attractive pursuits, it 
could not be expected that he should devote his attention 
at any time exclusively to the bar. Nevertheless, he 
enjoyed a large practice, and always maintained his 
post in the first rank of the profession. His multifarious 
avocations did not afford him time to condense his 
arguments, and his style, therefore, was often diffuse, 
and somewhat redundant. 

He was undoubtedly less of a jurist than some of 
his cotemporaries, but perhaps of more general accom- 
plishment than any of them. If he had not been a 
lawyer, he would have been a great statesman ; and if 
he had not been a statesman, he would have been one 
of the greatest lawyers of the nge. Although he be- 



ALEXANDER JAMES DALLAS, L.L.D. 539 

longed to the democracy, and was by common consent 
their leader in Pennsylvania, he never descended from 
his lofty standard of self-respect, to promote his own 
political views, or to secure the favor or adulation of 
his party; and it may also be truly said, that he 
never allowed party antipathy or acrimony to dis- 
turb the harmony of social or professional intercourse. 
As nearly all the leading members of the bar were 
federalists, his position was at times rendered un- 
comfortable, if not disagreeable, and the very refine- 
ment of his sensibilities, increased the penalties to 
which he was subjected. But even his could not 
deprive him of his self-rehance, or interfere with the 
conscientious and inflexible discharge of his duty. He 
was always a fast friend, and an honorable and liberal 
adversary ; and to his lasting credit, be it remembered 
that no impediment thrown in his w^ay, ever became 
an obstacle to his advancement ; he either brushed it 
from his path, or surmounted it by the elevating power 
of his iiTepressible genius. 

In the brightest days of Westminster Hall, Mr. Dal- 
las would have been an object of respect and admira- 
tion. In the proudest periods of parliamentary glory, 
he would have suffered nothing in comparison with 
those lofty spirits by whom he would have been sur- 
rounded. He was, in short, a thorough scholar, a 
sound law3^er, a sagacious statesman, an accomplished 
orator, and an exemplary gentleman. 



540 THE FORUM. 

Mr. Dallas died on tlie sixteenth day of January, 
1817, at the age of fifty-seven, having overcome more 
difficulties, and achieved more honors, than are often 
attendant upon the usual vicissitudes and career of 
life. 

Mr. Dallas left a widow, a most estimable lady, and 
six children, three sons and three daughters. One of 
his sons, hearing his father's name, who became a cap- 
tain in the navy ; George M. Dallas, the present minister 
to England, and former Vice President of the United 
States, who has even surpassed his father's fame ; 
and Trevanion B. Dallas, a lawyer of eminence, estab- 
lished at Pittsburg. The first and the last of these 
died some years after their father, and the only sur- 
viving son is George Mifflin Dallas. 

AU the daughters of Mr. Dallas are, we beheve, still 
living. The eldest married Richard Bache, a grandson 
of Dr. Franklin. The second, William W. Willdns, a 
distinguished lawyer of Pittsburg, and more recently 
Senator, Secretary of State for the United States, 
and Minister to Russia. And the third, Maria, is 
the wife of Alexander Campbell, from Yirginia, a 
finished gentleman, of fine literary taste, and for 
many years a resident of this city. Mr. St. George 
Tucker Campbell, of the Philadelphia bar, is the 
son of Mr. Campbell, and the grandson, by the mo- 
ther's side, of Alexander James Dallas. He has been 
admitted to practice since the sixth of February, 



ALEXANDER JAMES DALLAS, L.L.D. 54]^ 

1835, and although not yet forty years old, has estab- 
lished a reputation as a lawyer and an advocate, equal 
to that of any man of his age in the United States. 
He is a true scion from the parent stock, and while he 
reflects credit upon the profession to which he belongs, 
he contributes to perpetuate the honors of the family 
from which he sprung. 

Looking to the fortunes of Mr. Dallas and his family, 
it can hardly be said that republics are ungrateful, for 
there is scarcely an honorable and profitable office in 
the country, within the gift of the people, that has not 
been enjoyed by, or tendered to some of its various 
members. And it may be further truly said, that those 
offices have been well bestowed, and their duties ably 
and honorably fulfilled.* 



* From the difficulty which all must encounter, who may attempt 
biographical sketches, in obtaining dates of events necessary to be intro- 
duced, I have drawn in this memoir, from materials furnished by the Hon. 
Thomas Sergeant, in an obituary notice of Mr. Dallas, published in 
March, 1817. 



CHAPTEE XIY. 

SAMPSON LEVY. 

BORN, 1761— DIED, DECEMBER 15tli, 1831. 

Professionally connected with tlie illustrious men 
to whom we have briefly and imperfectly alluded, there 
was one who, with comparatively but little knowledge 
of the principles of the law, a very imperfect literary 
education, and a mind of limited native powers, never- 
theless held a highly respectable position among his 
brethren, and by his good nature, sprightliness, and wit, 
and sometimes even by his blunders, contributed much 
to the agreeable character of the Bar, and succeeded 
in estabhshing himself in a lucrative though subor- 
dinate practice. Like the light of a picture, he reheved 
its sombre shades, and imparted life and liilarity to all 
around. Always in a good humor himself, he was the 
cause of good humor in others — and the profession 
would at any time have better spared a greater man. 
We refer to the late Sampson Levy. Having read law 
with his brother, Moses Levy, he was admitted to prac- 



SAMPSON LEVY. ' 543 

tice in the year 1785, and soon grew into great popular 
favor, and for many years must have been in the receipt 
of from six to eight thousand dollars per annum. 

His deportment was always kind and courteous, and 
his manner of speaking was so energetic, and his voice so 
agreeable, that the uninitiated considered him, to borrow 
a figure from his name, the very Sampson of the Bar. 

His off-hand speeches were perfect gems ; there never 
was any thing like them ; they flashed, sparkled, and 
corruscated in every direction but in that of the cause ; 
and sometimes, even, from his diffusive and erratic 
course, he would, when, of course, he couldn't help it, 
touch for a moment, though but for a moment, the essen- 
tial points in controversy. This led Judge Washington 
once to remark, that Mr. Levy was the most troublesome 
speaker at the bar, as in beating every bush, in sport- 
ing phrase, he sometimes started game which he almost 
immediately left for the Judge to hunt down. 

He had abundance of language, but no discrimination 
— no choice — no adaptation. He was governed by im- 
pulse and not by reason ; and hence it often happened, 
that the greater his preparation, the worse his argu- 
ment. To him, all cases were alike hopeful ; and no 
case was ever desperate until the execution had issued. 
The great secret of the success of his wit, consisted in 
this — that he apparently could not avoid it, and never 
seemed to be conscious of it until he observed its 
effects upon others. He was not sufficiently critical 



544 THE FORUM. 

in Ms knowledge of language to be a punster, but I 
would not give one of liis blunders for fifty ordinary 
puns — tliey were irresistible. His readiness was in- 
tuitive ; liis periods beautifully rounded, but contain- 
ing most heterogeneous and incomprehensible matter. 
For instance, in speaking of the testimony of a witness 
whose evidence was contradicted by an entry in the 
Bible, he exclaimed in a voice of thunder, " Behold 
here, gentlemen, upon the record of this holy volume, 
the enormity of this man's offence stares you in the 
face with gigantic strides." 

Again, in conducting a case in which he was deeply 
interested, he pronounced it to be a " hydrant, sucking 
into its destructive vortex, all the consequences that be- 
longed to it." These are instances taken from thou- 
sands, equally racy and extravagant. His practical 
professional wit and acuteness were scarcely less re- 
markable. A client having been arrested and held to 
bail in the sum of ten thousand dollars, during the yel- 
low fever of 1805, the bail could not be procured, and 
the defendant was committed. Mr. Levy resorted to 
every possible means to relieve him, but in vain. At 
length, he issued a writ against the plamtiif for the 
same amount; he could not get bail, and was also com- 
mitted. Upon being asked by the adverse counsel 
why this was done ? he replied, it was the only way 
of securing sympathy with the original defendant, and 
bringing them together, in order that they might adjust 



SAMPSON LEVY. 545 

their dispute — and it so turned out ; for the creditor, 
in order to get out himself, consented to allow his 
debtor to he liberated without bail. At another time, 
he was opposed to Mr. Alexander James Dallas, in a 
marine case of some account, but in which Mr. Levy, 
in common phrase, "hadn't a foot to stand upon." 
After a very able and conclusive argument from Mr. 
Dallas, the Court inquired of Mr. Levy what answer 
he could give to it, to which the shrewd and wily 
lawyer at once repHed, — 

" Mr. Dallas is not familiar with maritime law, your Honor, and 
he has made some egregious mistakes in his views of the case, 
which I should not like publicly to expose in a crowded court 
house, but if my learned friend will allow me a moment's private 
interview, I will convince him of his error." 

They accordingly withdrew into the consultation 
room, where Mr. Levy immediately abandoned the 
defence, and a decree passed against his client. 

In another case in the same court, he and the late 
William Delany were concerned in an angry, and 
warmly contested case, for a seaman's wages, in which 
they succeeded in obtaining a decree for the claimant, 
of three hundred dollars. After the case was finished, 
Mr. Levy requested his colleague and client to walk 
round to his office, in order that the money might be 
distributed. When he arrived, placing his colleague 



546 THE FORUM. 

on one side of tlie table and himself on the other, 
(while the client was looking on, with anxious ex- 
pectation,) Mr. Levy taking from his pocket six fifty 
dollar notes, said — addressing Mr. Delany, and suiting 
the action to the word — " There, sir, are fifty dollars 
for you — and here are fifty dollars for me — there are 
another fifty dollars for you — and here another fifty 
dollars for me." " My Gr — d !" cried the astonished 
client, "Mr. Levy what am I to have ?" "Why," said 
Levy, "you have the honor of the victory, which is 
beyond all price." 

Li social or convivial intercourse, Mr. Levy was 
equally amusmg. Upon some festive occasion he 
dined with the late Judge Tilghman, who had given a 
dinner in honor of a distinguished literary personage, 
just arrived from England. Mr. Levy with many 
others, was invited ; he was ambitious of literary asso- 
ciation, but he was sensible that his early opportuni- 
ties of instruction had hardly qualified him to partici- 
pate in it. During the dinner, science, literature and 
the arts were extensively discussed, and Mr. Levy, con- 
trary to his wont, remained perfectly silent. At length, 
unable to endure it any longer, he exclaimed abruptly 

to the guest : " Pray, Mr. , in your extensive 

reading — which, indeed, seems to have been almost 
unlimited — ^have you ever met with a little book, 
caUed ' M'Nally on Evidence ?' " 

Upon another and similar occasion, in a large com- 



SAMPSON LEVY. 547 

pany, while the late C. W. Hare, who was very eloquent, 
was attracting the attention of the entire company, with 
a learned dissertation upon political economy. Levy, who 
wished to put an end to it, in order that he might have 
some chance to shine, abruptly said : " Pray, Brother 
Hare, have you ever read Quintillian ?" " Certainly," 
replied Mr. Hare., " Well," said Levy, " you must have 
forgotten that he tells us, I think, that nothing so be- 
comes an orator, as occasionally a solemn faiiser This, 
of course, terminated the speech, and restored the gene- 
ral conversation. 

We have said that Mr. Levy's education was imper- 
fect ; but he was nevertheless always ambitious of the 
society of literary men, where, from his excellent man- 
ners, good temper, and merriment, he was OA^er welcome. 
At the time to which I now refer, say 1810, Joseph 
Dennie, Esq., well known for his literary attainments, 
and holding a high social position, was the editor of 
the Portfolio, and an author of great merit and cele- 
brity. He was upon the most intimate terms with 
John Quincy Adams, Hopkinson, the elder Meredith, 
and most of the master spirits of the time. Levy was 
of course desirous of being received into this delightful 
circle. Upon returning from court, his servant handed 
him a letter, which appeared to be an invitation to dinner 
from Mr. Dennie. Mr. Levy's golden dream was out, 
and on the appointed day, and to the very horn-, he 
called at Mr. Dennie's lodgings, the abode of the muses, 



548 'fS^ FORUM. 

and inquired for his host. What was his surprise, 
however, to be informed that Mr. Dennie was absent 
from town, and would not return for some days. He 
examined his invitation ; there could be no mistake as 
to day or hour, and he left the house, not only very 
much chagrined, but seriously offended. 

He at once betook himself to the office of Mr. Mere- 
dith, and there made his complaint, of what he conceived 
to amount to an intended personal insult. He was a man 
of undoubted spirit, and he declared he would submit to 
no such indignity. Mr. Meredith, who had a high regard 
for both parties, observed that there must certainly be 
some mistake. Mr. Dennie was not a man to indulge 
in merriment at the expense of others, and he was 
certain Mr. Levy would be the last man in the v^orld 
with whom he would take such a liberty. " Mistake !" 
said Levy, much excited. " How can there be a mis- 
take? There's the letter, (handing him the letter,) 
and it speaks for itself." Mr. Meredith read it, and 
laughing heartily, said, " It is very true, the letter 
does speak for itself, but it does not speak for Mr. 
Dennie, — ^it is not written in his hand, nor is it signed 
by him. It is a letter of invitation from J. Dennis, 
the coroner. My dear Levy, you have been altogether 
in an error." By this time the festive hour had long 
passed. Mr. Levy lost his dinner, but he recovered 
his good humor, and joined in the merrunent, which 
his own blunder had produced. 



SAMPSON LEVY. 549 

This anecdote, although characteristic of Mr. Levy, 
and although it has gained currency, seems somewhat 
questionable ; but there is another, relating to the same 
personages, that may be relied upon as veritable, and 
that is not less indicative of the peculiarity of Mr. 
Levy, to which we have referred. 

He was invited upon one occasion to dine with a dis- 
tinguished member of the bar, where it was expected Mr. 
Dennie would be present. As was not unusual with that 
gentleman, he did not make his appearance; he was a 
man subject to all the skiey influences, and was regu- 
lated more by the weather than his engagements. The 
dinner was served, and in the presence of the whole 
company, Mr. Levy expressed his mortification at not 
meetmg the expected guest — the literary leviathan, as 
he called him — observing at the same time, " that as he 
hoped to enjoy a literary conversation, he had consumed 
all the morning in reading and cramming himself with 
Plutarch's Lives, in order that he might contribute his 
share to the anticipated intellectual treat; and now," 
said he, " all this labor and learning go for nothing." 

It has been truly said by Chesterfield, " that no man 
appears so ridiculous by any qualities he has, as by 
those he affects to have." Mr. Levy's affectation of 
literary eminence was most remarkable. When he gave 
a party, or partook of a party, he was certain to pre- 
pare himself by conning over any review or recent 
publication, the subject of which he was certain to 



550 THE FORUM. 

broach upon the earliest opportunity, and without much 
regard for its fitness. This practice of his was so well 
understood, that it contributed more to the hilarity of 
convivial intercourse, than if he had displayed all the 
wisdom of Bacon or of Locke; and it was aptly observ- 
ed of him, that it mattered very little how he tumbled, 
as he was sure to alight upon his feet. He was a great 
favorite with the bar; and since his death, the gap 
he left in its ranks remains unfilled. 

There are other incidents, more professional than 
these. A stately-looking gentleman called upon him, 
with a copy of a very complicated will, containmg a 
vast variety of trusts, and exhibiting on its face incon- 
sistencies, which it was difficult, if not impossible to re- 
concile. The gentleman asked him to examine it care- 
fully, and furnish him with a distinct written opinion upon 
its true, legal interpretation, stating at the same time 
that he would call in a week, receive the result, and pay 
himhberally for his professional service. The moment 
the client left the office, Mr. Levy turned to his students 
— handed the copy of the will to them — told them it 
would furnish them a fine opportunity for improvement, 
and requested them to examine carefully the authorities 
bearing upon the points in question; and upon the 
strength of a large expected fee, and then' attention, 
invited them all to a handsome supper. The task was 
performed — the supper was enjoyed — in a few days 
an elaborate opinion was prepared — and at the ap- 



SAMPSON LEVY. 551 

pointed time, the client called. Mr. Levy, with no little 
parade, read the opinion, consisting of many pages. 
The gentleman was delighted, and upon receiving it, 
laid upon the table a note, delicately rolled up, exhibit- 
ing at the corner, the figure one, and left the office. As 
soon as he had gone, Mr. Levy unrolled the note, and 
instead of its being one hundred dollars, as he expected, 
it proved to be but one dollar. " There is," said he, 
"gentlemen," addressing his students, "a great mis- 
take ; the gentleman has rolled up the ivrong note ; he 
no doubt intended to pay one hundred dollars, but he 
has left but one dollar. Do see if you can find him, 
and let it be corrected." The students set off in every 
direction in pursuit, but it proved unavailing — and 
hence the supper — the research — and the opinion — aU 
passed for a single dollar. 

It afterwards was found out, that the whole affair had 
been contrived as a hoax by the students themselves ; 
that the pretended will was a fiction of theu^'s, and that 
the. supposed client was an impostor. 

About this time Mr. Levy, who, I have said, had 
extensive practice, was called upon to argue a case in 
the adjoining State of New Jersey. It was a matter 
of considerable importance. He presented liimself in 
the County Court, at Woodbury, and was about to 
open the case, when the Court, with more presumption 
than learning or civility, addressing him, said, " Mr. 
Levy, we know you personally and by reputation, but 



552 THE FORUM. 

our rules forbid any gentleman to practice in this State, 
unless lie shall have been formally admitted." " I beg 
your pardon/' said Mr. Levy, " I was not aware of it ; 
but by way of mending the matter, I will ask some of 
my learned brethren here to move for my admission 
at once." " But before any one can move your admis- 
sion/' said the Judge, " it is necessary that you should 
be examined by the Court, that they may satisfy them- 
selves as to your competency." " Certainly," said Mt. 
Levy, " by all means ; I am perfectly ready to submit 
to your rule, with one proviso, that seems to me to be 
perfectly reasonable, which is this, that I shall first be 
allowed to examine the Courts in order that I may 
ascertain, whether they are comfeient to examine meT 

He was at one time engaged for the notorious A , 

and during a speech of great force he disclaimed having 
received any fee, and challenged greater attention, and 
a more favorable consideration from the jury, on the 
ground of his candor and disinterestedness. His client, 
however, who, being often justly susjjected, was him- 
self, of course, susjncious, imagining, from the tone of 
Mr. Levy's argument, that he was about abandoning 
the case, adroitly and secretly stepped behind the 
counsel, and put a ten dollar note in his hand ; upon 
which the advocate, whose itching palm immediately 
recognized the fee, exclaimed at once, with scarcely a 
break in the speech, " And suppose, gentlemen of the 
jury, I have received a fee, is the fact of a fair and 



SAMPSON LEVY. 553 

honorable compensation for my services, to deprive my 
client of liis rights, or of the benefit of my argument ?" 

In another case of considerable interest, against the 
African Methodist Church, the defendants, who were 
generally black, happened to call a white man to testify 
on their behalf. This furnished Mr. Levy an oppor- 
tunity for remarking in the course of his speech, " that 
the defendants had craftily introduced a luJiite witness 
into the case, for no other living purpose than to give 
a coloi' to the defence." 

Upon another occasion, a gentleman called upon him, 
in a complicated matter, and having occupied the time 
of the counsel for some half an hour, said to him, " I 
wish to know what you would advise in such circum- 
stances." "Why, in such circumstances," said Mr. 
Levy, with great gravity, " I would advise you, when 
you go home, " to put twenty dollars m your pocket, 
and then call upon some legal friend of yours, and give 
him a fee, and no doubt he will give you an oj)uiion." 
The client took the hint, and the affair was thus satis- 
factorily finished. 

Mr. Baize Newcomb, whose loss at the age of seventy- 
seven, we have been recently called upon to dej^lore, 
was a sound lawyer, but remarkably slow and sure, in 
everything he said and did, which led Mr. Levy plea- 
santly to say of him, "that he resembled a land terrapin, 
that wouldn't move unless you put a coal of fire on his 
• back." 

VOL. I. — 36 



554: " THE FORUM. 

Upon an argument before the Supreme Court, My. 
Levy was citing a case from tlie reports. While read- 
ing it, Chief Justice Tilghman turned to him, in his 
usual mild way, and said, "Mr. Levy, you are not 
reading the opinion of the court, but the argument of 
counsel." "I know that," said Levy, "1 read the 
argument of counsel, may it please your honor, because 
it is generally the best part of a case." 

" You need not read the book you have cited," said 
Judge Barnes to Mr. Levy. " I know all about it." 
"If," said Levy, closing the book, "you know all about 
it, now tell me, if you please, what it is, and what use 
I am about to make of it." 

In his speeches, Mr. Levy never considered anything 
but simply getting through his sentences, utterly re- 
gardless of everything but making his speech. He had 
apparently no distinct ideas, no verbal preparation, but 
threw his words and thoughts together, like fragments 
of glass in a kaleidoscope, trusting to chance for their 
combination and brilliancy. A few specimens will 
exemplify the truth of this remark : 

"I read this to ampIi/T/ my remarks on tlie court, to a jjoinf." 

" I stand upon strong ground, when I say these two counts leave 
the case in the same condition as below." 

" The bond was the personal security and ability of the indivi- 
dual who gave it." 

" I maintain, may it please this honorable Court, that in every 
well regulated society, justice is to be dispensed u-ith throughout 
the land." 



SAMPSON LEVY. 555 

"■ The idea of a purcliase, in its fair and simple meaning, is the 
rio-lit to an article, of which it forms the subject of a contract." 

" Theories are the shackling, abstruse matters, which are as 
different as possible from the matter in hand." 

"If I were standing here upon the act of assembly, as a text- 
book, I think I could satisfy the court of the circumstances of the 
case." 

'< The arbitrary decision of the jury is alwaj-s supraviscd by the 
controlling judgment of the court." 

" These principles fix the foundation, upon which my premises 
may fairly be drawn, to an intelligent court." 

]Mr. Levy was of Jewish extraction, but became a 
convert to the Christian faith, and a member of the 
Episcopal church, early in life. 

In this faith he died, on the 15th of December, 1831. 

He was, it is unnecessary to repeat, a man of great 
affability and pleasantry, and of infinite jest and humor. 
He was of short stature, but stout and well made in 
his person, and of good features, and highly intelligent 
face. He always dressed with the greatest neatness, 
and in strict conformity with the fashion of those times. 
At the period of his death, he was seventy years old, 
but few persons would have taken him to be more than 
sixty. He married a most amiable and sensible woman, 
in early life, who survived him many years. Thek 
marriage was not blessed with cliildren, but apparently 
attended with great harmony, affection, and happiness. 

Towards the close of his life, Mr. Levy's business 
was much diminished, but he lost none of his alacrity 



556 THE FORUM. 

or cheerfulness, and retained all his fondness for his 
profession to the last of liis life. It was a favorite 
expression of his, at all times, " that the lawyers were 
the salt of the earth ;" and, certainly, in regard to him, 
it may be truly said, " the salt never lost its savor." 

" Mori est felicis antequam mortem invocet." 



CHAPTER XY. 

RETROSPECT AND PROSPECT. 

In taking leave of the lights of the law, we may 
be allowed to observe, that the influence of a body of 
men, such as those we have glanced at, may be readily 
conceived. The eyes of the Union were bent upon 
them; indeed, during theu* earlier days, Philadelpliia 
was considered in all respects the centre and cynosure 
of the Union. They were not only illustrious in 
themselves, but they cast then' rays over the entire 
State and country. Their example sustained the weak 
and strengthened the powerful, encouraged the diffi- 
dent and repressed the presumptuous; notliing mean, 
crafty, or degraded, could live in their pure atmosphere ; 
and although, at all times, there are to be found men 
connected with the practice of the law, as well as all the 
other sciences, and, indeed, all worldly pursuits, re- 



558 THE FORUM. 

fleeting but little credit upon their professions or voca- 
tions ; yet none such ever ventured, or at least ever 
continued, within the sacred circle by which these 
Fathers of the Law were self-surrounded. Yet never 
were there men more approachable, or more familiar 
with those who, however young, inexperienced, or 
humble, gave promise of an uidustrious, zealous, and 
honorable career in the profession of theu' choice. They 
were, in every sense of the word, the Fathers of the 
Bar, and promoted the advancement, sympathized with 
the difficulties, and deplored the failure of thek chil- 
dren. 

They were not only great men in great things, but 
they observed all the minutest proprieties of a dis- 
tinguished profession. We had not then reached the 
Fast Age : or the awkward, or careless, or indifferent 
age. No man then sat with his heels higher than his 
head, or planted his foot upon a chair, or occupied two 
chairs at once, or threw his leg across its back, or sup- 
ported himself by clinging to the railing, or held long 
talks with the Court while some important motion or 
argument was pending, or got up before he was ready, or 
sat down before he had finished, or interrupted his adver- 
sary, or manifested any restlessness or discomposui^e. 
If they had been translated from the court-room to the 
most refined drawing-room, their manners and deport- 
ment would have required no improvement. They all 
spoke to each other, and of each other, as accompKshed 



RETROSPECT AND PROSPECT. 559 

gentlemen, and acted in accordance with the title, and 
in conformity with its obligations. They wore no wigs 
or gowns at this time, after the fashion of Westminster 
Hall, but they carried " that within which passed all 
show." 

They were orators as well as lawyers. They did 
not, it is true, try a case as hastily as we do now, but 
they tried it better for themselves, their clients, and 
the law. They never introduced any case to the Court 
or jury, without a clear and formal opening; not that 
this was always indispensable, but that it became the 
gravity and dignity of a court of justice. There are 
many ceremonies not necessary that are highly be- 
coming. 

No man ever knew them to present, even a case upon 
a promissory note, as is the fashion now, thus : — " This, 
. gentleman of the jury, is an action upon a note for five 
thousand dollars, brought by payee against the maker. 
There's the note ; I'll call the witnesses." The wit- 
nesses are called — the note thrust into the jury-box — 
the Court hardly knows what is going on — and in this 
jumble of commingled opening and evidence, the ver- 
dict is pronounced. We have sometimes almost been at 
a loss to know, from the bustle, and confusion, and 
hurry of the occasion, whether it was a liot or a trial, 
that was gomg on. 

Tliis, as we have said, is a melancholy departure from 
the example of our predecessors; thei/ were sometimes 



5gQ THE FORUM. 

in haste, but never in a hurry — never in confusion ; 
and I may add, rarely in a passion. A quarrelsome 
man was always avoided by them, if not actually " put 
into Coventry ;" and a crafty adversary, once detected, 
was never afterwards trusted. Cases were not so nu- 
merous in these times, it is true, as in ours, but they 
were generally much more important, and involved 
greater intricacies and difficulties. There were then 
no American Reports, containing authority bearing 
upon the points in question.* They, themselves, may 
be said to have been at once the founders and expound- 
ers of American law, and it is fortunate that we had 
such precursors. If crude and reckless speeches, and 
inmiature embryo opinions had been delivered then, the 
consequences, to the bar and the country, in after times, 
would have been, indeed, most pernicious. They laid 
the foundation of the law, broad, and deep, and strong, 
and all that has been since erected upon it, if it has not 
weakened, has certainly not improved- it. They were 
not, of course, case lawyers ; they built then- know- 
ledge upon principles, and instead of drinking from 

^ Kirby's Connecticut Eeports -were published in 1789, and embraced 
cases between 1785 and 1788, and were the first Reports published in 
America. Dallas's Reports followed in 1790, under the imprimatur of 
Chief Justice M'Kean and his Associates, Allen, Rush, Bryan, and Ship- 
peu. There are some decisions in the first volume extending back as far 
as the year 1759, but they are mere fragments, and chiefly valuable for 
their antiquity. 



RETROSPECT AND PROSPECT. 5(5]_ 

the turbid and muddy waters running through every 
irregular and corrupt channel, they slaked their thii'st 
at the pure fountain head. They seemed to look with 
a prescient and anxious eye to those who should follow 
them, and to whom they were to transmit either lasting 
benefits, or cureless injuries. 

These great men were always civil and respectful 
to the courts, but never servile ; never unmindful of 
their duties to themselves and their clients. And 
when ]Mr. Lewis, (with whom was associated Mi\ A. 
J. Dallas, in the case of John Fries, who was tried 
for treason,) publicly declared, that " his hand should 
never be contaminated by a pre-judged opinion in a 
capital case," he did no more than any other distin- 
guished member of the bar at that time would have 
done, even in the presence of as arbitrary a judge as 
ever sat upon the American bench. 

The. true dignity and harmony of courts of justice, 
depend upon a just observance of the relative position 
of court and counsel ; mutual respect for each other, 
or — if I may say so — "taking and giving odor." I 
have seen the Judges of the Supreme Court, in its 
most palmy state, before the hour of taking then- seats, 
engaged in a friendly and sprightly conversation with 
a knot of the members of the bar, upon the most 
agreeable, familiar, and equal terms ; but the moment 
they assumed their places, conversation ended, and bu- 
siness commenced. There was no longer any famili- 



562 TH^ FORUM. 

arity, tliough always great courtesy, great kindness, 
and great attention. 

Their demeanor resembled that of tlie Supreme Court 
at Washington, during the Chief Justiceship of John 
Marshall. The eyes of all the judges of that great 
tribunal were centered upon the speaker, and mind 
seemed to meet mind, through the visual organs, and 
thereby to produce reciprocal enlightenment. How 
dignified is such a judicial deportment — how gTatify- 
ing and encouraging to the advocate — ^how impressive 
upon all the beholders. It mattered not by whom the 
court was addressed — Mr. Pinckney, Mr. Wirt, Mr. 
Sergeant, Mr. Binney, Mr. Webster, or Mr. Ingersoll, 
received the same, and no greater apparent attention, 
than any second or third-rate lawyer, arguing his first 
cause. If any difference was manifested, it was rather 
in favor of the young and inexperienced, or those whose 
condition appealed to the sympathy of the judges, quite 
as much as to theu' judgment. We weU remember seve- 
ral instances of this kind ; in one of which it was plain 
that the counsel had been worshipping rather at the 
shrine of Bacchus, than Themis. TwMing about, as 
he did, dming the argument, (if it might be called so,) 
it was no easy matter either to fix his eye, or the basi- 
lisk eye of the Chief Justice, nevertheless it was ac- 
complished, and actually resulted in making the speaker 
stand straight, and in restoring him to a state of seem- 
ing sobriety. The world may talli: of the dignity and 



RETROSPECT AND PROSPECT. 553 

majesty of the Court of King's Bench, but we hazard 
nothing in saying, that no judicial tribunal at home or 
abroad, ancient or modern, has ever surpassed, in these 
respects, the Supreme Court of the United States. 

But returning to the Judges of our State Courts — 
they neither flared up, nor blew out, nor interfered in 
any way with the legitimate privileges of counsel. They 
never jumped to a conclusion before the premises had 
been stated, or took the witness out of the hands of 
counsel, or told him how many, or how few, he was to 
call, or professed to understand his case better than 
himself, or thumped upon the bench, or wielded their 
mallet or gavel like an auctioneer, knockmg down jus- 
tice, or confounded themselves with the crier; and 
bawled out order, or read a newspaper or a pamphlet 
during the argument, or talked to their subordinates or 
dependants, or fidgeted and wriggled in their seats, as if 
dissatisfied with their salaries, or labors, or with both. 

In a word, at the period referred to, the deportment 
of the Bench and the Bar, were what they always 
should be, in order to inspire the community with pro- 
found respect and veneration. But while they were 
courteous and kind to all around, and made no distinc- 
tions between their fellow citizens, they neither encou- 
raged nor permitted improper freedom or familiarity, 
from any quarter. 

The etiquette of the courts is quite as necessary to 
be observed, as that of society. It ought never to be 



gg4 THE FORUM. 

permitted, that the whole community should obtrude 
themselves, at pleasure, upon the precincts of the bar. 
Strangers, and othei^s than suitors, have no more right 
to usurp the appropriate places of others, than they 
have to enter, uninvited, into the parlor of a stranger, 
or to occupy the counting-house of a merchant, or the 
pulpit of a clergyman, to the embarrassment or inter- 
ruption of the proper occupant or incumbent. In the 
language of Bacon, " The place of Justice is an hal- 
lowed place, and therefore, not only the Bench, but 
the foot-place and precincts, and purprise thereof, 
ought to be preserved without scandal and corrup- 
tion."* 

In former and better times, these violations of deco- 
rum were not allowed, but now, if you wiE look within 
the bar, among us, you can scarcely tell the cHents 
from the counsel; and that is not the worst of it, you will 
find that more than one-half of its occupants are mere 
loiterers, or perhaps loungers, who are influenced more 
by curiosity or indolence, than any profitable or laud- 
able purpose. In England, the usage is entu-ely dif- 
ferent. The enclosure for the bar, is not free to the 
entu'e community; it is devoted to legal business. 
The very apparel of the barristers — their wigs and 
gowns — are significant of certain privileges ; and allow- 
ing the members of the bar, with us, do not bear with 

* Works of Lord Bacon, Vol. I., p. 182. Vide also, p. 82. 



RETROSPECT AND PROSPECT. 555 

them the outward and visible sign, they are, certainly, 
either known, or ought to be, to the attendants upon 
the court; and if the judges would make and enforce 
an order for the exclusion of interlopers — not from the 
court-rooms, (for that cannot be done, and if it could, 
would not be desirable,) but from the strictly busmess 
limits of the profession — it would contribute largely to 
the convenience and comfort of those who are actually 
interested or concerned in the cases upon trial. If 
these suggestions were adopted, much confusion would 
be avoided, and legal operations would be not only 
facilitated, but consequently accelerated. 

The annoyance complained of, it is true, is in some 
instances attributable to the wretched arrangement, 
or rather derangement, of our court rooms. When 
courts sit in pig-styes, whatever may be the inherent 
dignity of the tribunal, they will be still subject to the 
occasional encroachments of unpleasant visitors. But 
even with the present meagre accommodations, greater 
order might be observed ; in the District and Cu'cuit 
Courts of the United States, it is observed. In the 
other courts, from the latitude that is allowed to every 
one to occupy a seat withm the railing, (having neither 
right nor business, to excuse the encroachment,) we 
need hardly be astonished, if at last, some of these 
intruders should actually aspire to the judgment-seat, 
itself. Nay, we not unfrequently, as it is, see men 
rushing boldly upon the Bench, and interrupting the 



5Qg THE FORUM. 

judge during liis session — many, it is true, who know 
no better ; but wliat is required, is a rule forbidding 
this privilege to all, and then none will have a right to 
complain. No man — certainly, lawyer or layman — 
was ever known in France or England, so to invade 
judicial sanctity, unless by express judicial invitation 
or permission. But it may be said, there is a vast dif- 
ference between a monarchy and a repubhc — so there 
is, but JUSTICE IS ALWxVYS A MONARCH, and her ministers 
should partake of her royal properties, privileges, and 
attributes. It is essential to the protection of the com- 
munity that it should be so, and no one has the right 
to object to that exercise of power, which restrains all 
for the benefit of all. '' Degree, priority, and place," 
must be observed, or nations and communities could 
never exist : 

" How coxild communities, degrees in schools, and brotlierli'oods 
In cities ; peaceful commerce, from dividable shores. 
The primogenitive and due of birth, 
Prerogative of age, crowns, sceptres, laurels, 
But by DEGREE, stand in authentic place ?" 

In the counties throughout the State, (contrary to 
what might be supposed from our example,) the divi- 
sion line between the bar and audience is clearly un- 
derstood and regarded, and so it is in most of the cities 
of the Union. Philadelphia, (the Athens of America,) 
is a melancholy exception. It must not be supposed 



RETROSPECT AND PROSPECT. 5(37 

that these remarks have for their ohject any imposi- 
tion of unreasonable restraints upon suitors, witnesses, 
or even strangers. On the contrary, the desire is 
to afford much greater convenience to all. On the 
score of utility, the benefit of the improvement sug- 
gested, must be obvious. The confusion and bustle 
that now exist would be superseded by quiet and har- 
mony, and our courts of law would become what they 
were designed to be — sacred temples, dedicated to 
Justice — and enjoying the respect and reverence of 
the people. 

In thus noticing those who have departed from among 
us, passing from works to rewards, and approving their 
practice, we must not be thought to disparage the exist- 
ing judiciary, much less to undervalue the learning and 
talents of our brethren of the bar. When it is in place 
to speak of them they shall receive theu^ full deserts, to 
the best of our humble abiUty. For the present, it may 
be enough to say, that all their faults or defects con- 
sist in manner, more than in matter, and would seem 
to spring from the erroneous modern notion, that he 
who dispatches the most cases, is entitled to be consi- 
dered the greatest judge, or the most accomphshed 
lawyer. Whereas, we are told, by the wisest and 
brightest of mankind,'-' that " affected dispatch, is one 
of the most dangerous things to business that can be — 

* Montague's Works of Lord Bacon, Yol. I., p. 83. 



568 ^'^'^ FORU-M. 

it is like that wliich the physician calls pre-digestion, 
or hasty digestion, which is sure to fill the body full 
of crudities, and secret seeds of disease; therefore, 
measure not dispatch by the time of sitting, but by 
the advancement of the business; and, as in races, it 
is not the long stride or high leap that makes the 
speed, so in business, in keeping close to the matter, 
and not taking of it too much at once, procureth dis- 
patch. It is the case of some only, to come off speedily 
for the time, or to contrive some false periods of busi- 
ness, because they may seem men of dispatch ; but it 
is one thing to abbreviate, by contracting, another, by 
cutting off. I knew a wise man, who had it for a by- 
word, when he saw men hasten to a conclusion, ' Stay 
a little, that we make an end the sooner.' " 

On the score of legal competency, great depth of learn- 
ing, untiling industry, and unquestionable fidelity and 
integrit}^, our judges and lawyers need not shrink from 
a comparison with the ablest men of this or any other 
State, or of tliis or any other time. But we may be 
allowed to observe, in all kindness, that it is much easier 
for great men to mcur small defects, than for small men 
to reach lofty virtues. That greatness is fully and freely 
accorded to them ; and those defects which have been 
rather hinted at than spoken of, are equally theii's. 
The end is not yet ; — and, without pretending to be a 
prophet, but judging simply from the signs of the times, 
a common observer may fairly predict, that if the pre- 



RETROSPECT AND PROSPECT. ggg 

sent course be pursued, the past glory of Pennsylvania 
Jurisprudence, shall never return. 

In these reflections and predictions, we are aware that 
there is a point in the life of man, in which, generally, 
his prejudices seem to be enlisted for the past, and 
against the present. We trust we have not yet reached 
that period, though we may be self-deceived. As hope 
magnifies the future, so retrospect magnifies the earlier 
scenes of life, in comparuig them with the present. 
We are aware that advanced age, unconsciously in- 
fluenced by the changes in its own condition, im- 
putes the supposed changes in the state of surrounding 
objects, to everything but the true cause. " Say not 
thou, tvJiat is tJie cause, that the former days were better 
than these ? for thou dost not inquire ivisely concerning 
these things^ 

You scarcely ever meet with a retired septuage- 
narian, who will not tell you, that matters are not now 
as they were formerly, — ^in other words, that they are 
altered for the worse; whereas the change that he 
thinks he perceives results, mainly, from the change 
in himself, which he does not perceive. His views 
and thoughts at seventy, are widely different from 
his views and thoughts at twenty. This is because 
the zeal, enthusiasm, companionship, and hopes of 
youth, have given way to the gravity, suspicion, soli- 
tude, and realities of age. 

Very few men are aware of the effects of time upon 

VOL. I. — 37 



^^Q THE FORUM. 

their mental faculties. The judgment, suffers in the de- 
terioration of the other functions. The mind takes 
melancholy rather than hvely views of passing events, 
and recurs to earlier scenes, actually similar, and 
bedecks them with youthful and agreeable fancies, 
and thence often draws the erroneous conclusion, that 
nothing present is comparable to the past. This is 
wisely ordered by Providence — there being no imme- 
diate enjoyment, and but little in exijedancy — reirosided 
is substituted for hope. The difference which exists 
is that, between contemplating the beauties of na- 
ture, under the bright influence of the morning sun, 
and the same scene under the sombre shadow of a 
gray twilight ; or perhaps it may be still more aptly 
resembled to the difference between Bering, wliich may 
be hkened to the morning of life, and the winter, where- 
in everything is benumbed, withered, and cheerless. 

In addition to this — after the gospel limit, of '"' three 
score years and ten," the physical faculties almost 
always fail. And each contributing to the imper- 
fection of the others, they all decay together, and 
gradually impair the action of the mind upon exter- 
nal objects or passing events, as well as the action 
or effects of external objects u]3on the mind. The sight 
becomes dim ; the hand tremulous ; the writing neces- 
sarily becomes imperfect, and the reading difficult. 
This, and the defect of sight, are, mutually, cause and 
effect, acting and reacting upon each other. The 



RETROSPECT AND PROSPECT. 57I 

hearing fails; tlie voice, no longer regulated by the 
ear, loses its natural sweetness and intonation; and 
the ear, in its turn, becomes of course less sensible 
to its cadence and impression. The sense of smell and 
taste are so inseparably connected, that to impair either 
impaii's the other. The touch also loses its sensibi- 
lity, and thus all the iihysical purveyors of the mind 
are deadened, and the mind itself is obstructed in its 
knowledge and external intercourse. This is the reason 
that, in advanced life, the mind, so far from improving, 
apparently falls off and recedes from its original power 
and activity. As long as the physical functions are per- 
fect, the mind is always perfect. 

Man may be truly said to be " a miracle to man." 
In middle age, as respects human experience, he knows 
but half of his own nature, for what he knows leyond 
that, he necessarily relies upon others. Advanced age 
is the best, for fulness of knowledge, provided it be not 
attended with the usual infirmities of old age, defective 
memory, or any other intellectual infirmity which might 
unfit it, for imparting or deriving instruction upon 
the various and devious affairs of life. A man whose 
experience renders him morose or misanthropic, or 
whose recollection is obscured, sees everything that he 
does see, through himself — a perverted medium ; and 
therefore never presents to others a reliable account of 
the pleasures or perils — the happiness or sufi'erings — 
of existence. 



572 THE FORUM. 

We should not, however, mourn over the frailties 
and imperfections of our temporal nature. It is wisely 
ordained that "whatever is, is right." If we were 
perfect Jiere, there would be little to look for hereafter. 
We can't be always young, and, thank Heaven, we 
can't be always old ; but we can always endeavor to 
perform our duties faithfuUy, through the shifting 
scenes and changes of life. " Man," says one of the 
wisest philosophers, " may be compared to the Indian 
fig-tree, which, being ripened to her fuU height, de- 
clines her branches down to the earth, whereof she con- 
ceives again, and they become roots in then' own 
stock."* 

* Montague's Works of Lord Bacon, Vol. I. 



^\\\ 0! |ir^t i0lttme. 



APPENDIX A. 



ANCIENT INDICTMENTS, ETC., REFERRED TO ON PAGE 226. 

V No. I. 

« Philadelphia, the 26th day of the Tth month, 1Y02. 
'' We, the Grand Inquest for tliis Corporation, do present George 
Robinson, butcher, for being a parson of evill fame as a common 
swarer, and a common drunker, & particularly upon the twenty- 
third day of this instant, for swaring three oths in the market-place, 
& also for utering two very bad curses the twenty-sixth day of 
this instant. Signed in behalf of self & fellows, by 

"Jno. Pons,* ferman." 
" Submits, and puts himself in mercy of 
the Court." 

" George Robinson, fined xxx s. for the oaths 
and curses."! 

* An abbreviation for Parsons. 

t The care which, in early times, seems, from this and other present- 
ments further on, to have been taken in the Province to have the Third 
Commandment well observed, was not continued by some of the magis- 
trates of a later date. We have a presentment, drawn January 3d, 1744, by 
Dr. Franklin, in which the Grand Inquest "do present Samuel Hassell, 



574 APPENDIX. 



No. II. 



"Philada., the 26tli 7 mo., 1702. 

'' We, of the Grrand Jury for tlie body of this citty, do present 
G-rimston Bond, & Margaret Eicliardson, & David Jones, & Enock 
hubbard, & Thomas Wills, & Grace Townsend, & John hole, & 
Ann Jones, Living in William hewns, for selling strong drink 
without Lycence. Signed in behalf of the rest of the Jurors. 

"Jno. Psons, forman." 

"We, the sd Grand Jury, Doe also present Denis Moore & 
Edward Berry, his man, & Philip Elbeck, for Assaulting & fight- 
ing with one another in the front street, on the twenty-third day 
of this Instant mo., about 10 at night, to the Destui'bance of the 
neighbourhood, & the breach of the peace. Signed in behalf of 
the rest of the jurors, pr. 

" Jno. Psonss, forman." 



No. III. 

" Philadelphia, ss. 

" We, the Jurors for this city, doe present phillip Eilbeck, of 
Chester County, for that on the twenty-third Day of this Instant, 
at night, at the house of Margaret Garret, in the front street, in 

Esq. as a Magistrate who not only refused to take notice of a complaint 
made to him against a person guilty of profane swearing, but (at another 
time) set an Evil Example by swearing himself." The passage was, ap- 
parently, thought too strong, and was struck out. 



APPENDIX. 575 

PLiladelpliia, aforesd, Did then & tlieire mennace & tlii'eaten lier- 
man Debeck, by drawing bis bagenet and making a pass at him, 
tbe said berman : & at the same time & place abovesaid, did 
utter tbree curses, to tbe terrifiding of the said berman & other 
the Qeen's Leige people, contrary to the laws in that case made 
& provided. Signed in behalf of the Rest of the Jurors, this 
28tb day of the 7th nio., 1702, pr. 

" Jno, Psons, forman." 
" Appears and submits, and puts himself 
in mercy of tlie Court." 

"Eilbeck for breach of the peace and 
curses, xxx s." 



No. IV. 

"Philadelphia, the 3d day of the 9th men., 1Y02. 

" Wee, the Grand Inquest for the body of this city, do present 
Thomas Mattocks, of Philadelphia, Butcher, for drunkennes, & 
particularly upon the twenty-fourth day of the eighth moneth he, 
the said Thomas Mattocks, was drunk in the market-place of this 
citty. Sined in bebalfe of the said inquest by 

"Jno. PsonS; ferman." 

" Wee also present G-eorge Robinson, of Philadelphia, butcher, 
for uttering a grevious oth on the thirtieth day of the seventh 
moneth last, & another oth the tenth day of the eighth moneth 
last past, in Philadelphia aforesaid. Sined in behalf of the said 

inquest by 

"Jno Psons, forman." 

"Submitts. Whereupon the Court fines him 
sii s. for the sd. oaths, it being the 2nd 
offence, & orders him to be discharged, 
the Court paying his fees." 



576 APPENDIX. 



No. V. 

" The 3d of the 12th mon : 1Y02. 

" We of tlie G-rand Jury for the Citty of Philadelpliia, do psent 
Jolin Satell for passing of bad counterfeit Coine to Anne Simes, on 
the 2nd of January Last past in her husbands house^ now Living 
in Philadelphia, & Also finding the mettal in his pocket, which 
we think the Money was made withall. 

" Signed in behalf of the Rest, 

"Abra: Hooper, foreman." 

It is interesting to observe, that the prisoner being found guilty, 
the record states that " Mr. Clark moves the court that the Judg- 
ment may be arrested and the Presentment quashed for Incertainty 
and Insufficiency, which was granted.'^ A hal masquS, which 
took place somewhere about the Christmas season, seems, from the 
next indictments, to have been severely visited on both guests 
and host. 



No. VI. 

"Philadelphia, the 4th of the 12th mo., 1702. 

" "We of the Grand Jury, do present Dorothy, the wife of Richard 
Cantwill, of Philadelphia, aforesaid, for being maskt or disguised 
in mens cloathes walking & dancing in the house of the said 
John Simes, in Philadelphia, contrary to the law of this province, 
at 9 or 10 o'clock at night, on the 26th or 28th day of the 10th 
month last past. 

" Signed, in behalf of the rest, 

"Abra. Hooper, foreman." 



APPENDIX. 577 



No. VII. 

" The 4 of y« 12 month, 1702. 

" We, ye Grrand Jury of y^ City of Philadelpliia, present Sarah 
Stivee, wife of John Stivee, of this city, for being dressed in man's 
cloathes, contrary to the nature of her sects, and in such disguises 
walked through the streets of this city, & from house to house, 
on or about the 26th of 10th month, to the grate disturbance of 
well minded persons, & incoridging of vice in this place; for 
this & other like enormities, we pray this honorable Bench to 
supress. 

" Signed in the behalf of the rest, 

"Abraham Hooper, foreman." 

No. VIII. 

" Philadelphia, the 4th of the 12th month, 1702. 

" We, y^ the Grrand Jury for y® Citty of Philadelphia, present 
John Smith, of this citty, living in Strawberry Alley, for being 
maskt or disgised in womans apparrell, walking openly through 
the streets of this city, & from house to house, on or about the 
26th of ye 10th month last past, it being against the Law of Grod, 
y^ Law of this province, & the Law of nature, to the staining of 
holy profession & incoridging of wickedness in this place. 
" Signed in behalf of the rest, 

" Abra. Hooper, foreman." 

N(f. IX. 

"Philadelphia, the 4th of y« 12th month, 1702. 
" "We, the Grrand Jury for the City of Philadelphia, present 



578 APPENDIX. 

John Simes, ordonary keeper of this city, for keeping a Desorderly 
house, a nursery to Debotch y^ inhabitants & youth of this citty, 
& suffering masqueraded persons in the house to dance & revel, 
on or upon the 26th or 28th of the 10th month last past, to the 
Greef of and Desturbanee of peaceable minds, & propigating y 
throne of wickedness amongst us. 

" Signed in behalf of the rest, 

" Abra. Hooper, foreman." 



No. X. 

" Philadelphia, ye 4th of the 12th mon., 1702. 

" "We, of ye Grand Juiy for the Citty of Philadelphia, Do psent 
John Joyse, for having of to wifes at once, which is boath against 
the law of God and man.* 

" Signed in behalf of the rest, 

"Abra. Hooper, foreman." 



The political party, since called Native American, or Know No- 
thing, though charged with being one of recent origin, seems to 
have had a veiy early beginning in Pennsylvania. We find the fol- 
lowing indictment : 

No. XI. 

" Philadelphia, ye 6th of the 3rd month, 1703. 

" We, of the Grand Jury for this city. Doe present Alexander 
Paxton & his wife, for letting a house to John Lovet, he being 

* " And still more," the presentment might have naturally addecl, 
"against that of woman." 



APPENDIX. 579 

a Stranger, & have not Given security for Tlie In Demnifying of 
tliis Corporation. 

" Signed in behalf of the rest, 

"Abra. Hooper, foreman." 



We have next a curious petition, which shows what a mixed 
jurisdiction the courts of that day were called on to exercise. It 
is in the Mayor's Court, which had succeeded, apparently, to the 
office of Parens Patrice, of the Lord Chancellor of England. The 
petition resembles, extremely, some of those found in the recently 
published " Chancery Calendars." 

No. XII. 

"To the Hon^'^ the Mayor, Kecorder, and Aldermen, for the 
City of Philad% now sitting in Court, the 6th day of May, 1703. 

" The petition of Priscilla Vaughan, widow, most humbly shew- 
eth. That your Petitioner's mother, Margaret Cook, (for reasons 
best known to herself,) hath turn'd her out of doors some weeks 
since, and expos' d her to great hardships and difficulties, being a 
desolate widow, and hath, and still doth detain all her Household 
Groods and Utinsils, except her wearing apparrel, tho' your poor 
Petitioner has not only sent, but gone in Person, to request and 
intreat y^ delivery thereof, which she still refuses, without giving 
any just reason for. 

" Yo'^ Petitioner therefore humbly Prays this hon""'^ Court to con- 
sider the premises, and to interceed in her behalf with her s*^ mo- 
ther, that so she may not be constrained to bring unnatural action 
ags* her aged and hon"^ mother. 

'' And yo" Petition'" as in duty shall ever pray, &c. 

"Price Vaughan." 



580 APPENDIX. 



No. XIII. 

" Philadelphia, this third day of November, 1703. 

" We doe also present Jon Furnis & Thomas McCarty & Tho- 
mas Anderson & henery Flower, barbers, for triming people on 
first days of the weeks, commonly called Sunday, contrary to the 
law in that case made & provided. 

" Signed in behalf of the rest of the Jurors, 

" John Redman, foreman." 

No. XIV. 

" We doe also present John Jones, Alderman, for making In- 
croachment on mulbery Street, in this city, by setting a great reed 
or hay stack in the said street, these two years past, & making a 
close fence about the same, this 3 day of September, 1703. 
" Signed in behalf of the rest of the Jurors, 

pr John Redman, foreman." 

No. XY. 

" We doe also present henery Brooks, the Queen's collector, at 
the horekills, for committing several outrages & disturbances in 
this citty, on or about the 11 & 12 day of October, 1703, about the 
dead time of the night, to the terrifying & affrighting the queen's 
peaceable subjects, & against the laws in that case made & pro- 
vided. 

" Signed in behalf of the rest of the Jurors, pr me, 

"John Redman." 



APPENDIX. 58X 

We here observe, as in No. V., that wlieii the attention of the 
Court was called to the matter, some of these very loose indict- 
ments are quashed, "henery Brooks, the Queen's collector at the 
horekills," who seems to have been coming home late from an eve- 
ning party, where he had "taken a little too much," no doubt had 
counsel to defend him, and the record notes, that "this Present- 
ment was quashed for Insufl&ciency." 

Next comes an excellent indictment, the spirit, if not the form, 
of which, all housekeepers, as we have said before, will commend 
to the District-attorney, as an excellent model. The hotel-keepers 
in those days, as on these, raised the price of beef in the market. 

No.'XVI. 

" Philadelphia, ye 4 : 12: 1703-4. 
" "We, the Grand Inquest for this corporation, do present Anne 
Symes, y® wife of John Symes, Inn-keeper,* for forestalling the 
market, contrary to law, on the 29th 11 mo. last past. 

"prWM. Bevon, Foreman." 



APPENDIX B. 



RECORD IN WILLIAM v. TILL, REFERRED TO ON PAGE 237. 

"June Term, 1749. 

" Philadelphia County, ss. 

'William Till, late of Philada County, mercliant, was attach' d 
to answer Lawrence Williams, of a plea of trespass upon tlie 
case, &c. 

" And whereupon, the s"! Lawrence, by John Koss, his att'^, com- 
plains that, whereas the s* William, the seventh day of May, iu 
the year of our Lord one thousand seven hundred and forty-six, 
at Philad% in the County afa, was indebted to the said Lawrence, 
in the sum of three thousand seven hundred and ninety-four 
pounds nineteen shillings and ten pence, sterling money of Great 
Britain, as well for divers goods, wares and merchandises by the 
s* Lawrence to the s^ William, at the special instance and request 
of the s^ William, before that time sold and delivered, as for divers 
sums of money by the s^ Lawrence to and for the s'^ William, at 
the like instance and request of the s^ William before that time 
lent, laid out, paid and expended, and also for Work, Labour, and 

■* This is the same person indicted in No. IX., for a masquerade in Hs 
house. 



APPENDIX. 583 

Service by the said Lawrence for the sd Willianij at the like In- 
stance and Request of the s'^ William before that time done and 
performed. And being so thereof indebted, the af^ William after- 
wards, to wit, the same day and year af"^ at Philad'' in the County 
af* in consideration thereof upon himself did assume, and to the 
s"^ Lawrence then and there faithfully did Promise that he the s^ 
William the af'^ sum of money, to the s* Lawrence when he should 
Afterwards be thereunto required would well and truly Pay and 
Content. Nevertheless the s* William his Promise and Assump- 
tion af'^ not Regarding but Contriving and fraudulently Intending 
him the s^ Lawrence in that behalf Craftily and Subtlely to deceive 
and defraud the af<i sum of Three thousand Seven hundred and 
Ninety-four pounds nineteen shillings and ten pence sterling money 
afd or any part or penny thereof to the s'^ Lawrence hath not paid 
or him for the same in any manner contented (altho' to do the 
same the af* William afterwards to wit the Tenth day of May, in 
the year of our Lord seventeen hundred and forty-six af'^ often 
afterwards at Philad^ af'^ by the s^ Lawrence was required,) but the 
same to him to Pay or Content altogether hitherto hath refused 
and still doth refuse, Whereupon the s"^ Lawrence saith he is worse 
and hath Damage to the value of Five thousand Pounds, and there- 
upon he Brings this suit, &c. 
"Ross." 

"John Doe, 
Pledges, &c. & 

"RiCHD. Roe." 



PLEA, 



" x\nd the aforesaid William Till cometh and saith that hereto- 
fore and since the Impetratiou of the Writ of Summons in this 



584 APPENDIX. 

plea, to wit, the eightli day of November, in tlie year of our Lord 
one thousand seven hundred and fifty, at a Court of Common Pleas 
held for the County of Sussex, one of the three lower Counties upon 
Delaware at Lewes, in the same County, to wit, at Philadelphia 
County aforesaid, a certain Jacob Phillips did impetrate and obtain 
from and out of the same Court a certain writ of our Lord the King 
that now is, to the Sherijff of Sussex County aforesaid directed, 
whereby our said Lord the King did command the same Sheriff, 
that if the said Jacob Phillips made him secure in prosecuting his 
Clamour, that he should attach all and singular, the Goods and 
Chattels, Lands and Tenements, Eights and Credits, of and belong- 
ing to Lawrence Williams, late of Sussex aforesaid. Merchant, (if 
they might be found in his Bailiwick,) so that the said Lawrence 
should be and appear before the Justices of the same Court, there 
to be held on the first Tuesday of Febru.ary then next, to answer 
the aforesaid Jacob Phillips of a plea of Trespass on the Case, &c. 
By virtue of which writ, afterward and before the Return thereof, 
to wit, the fourth day of May, in the year of our Lord one thousand 
seven hundred and fifty-one, the Sherijff of the said county of Sus- 
sex, at Sussex aforesaid, to wit, at Philadelphia County aforesaid, 
did, in due form of Law, attach, in the hands of the said William 
Till, all the Goods and Chattels, rights, debts, and Credits, to the 
said Lawrence Williams belonging, due, or owing, and which then 
were in the hands of the same William Till, according to the exi- 
gence of the same writ, of which same writ the said Sherifi" after- 
ward, to wit, the said first Tuesday in May, at Lewes aforesaid, to 
wit, at Philadelphia County aforesaid, to the Justices of the same 
Court did make return in these words : By virtue of the within 
writ to me directed, I humbly certify that I have attached all the 
effects of Lawrence Williams, Merchant, in the hands of William 
Till, Esq., as within I was commanded; and I have summoned 
him the said William as Garnishee to the said Lawrence, this fourth 
day of February, in the year of our Lord one thousand seven hun- 



APPENDIX. 585 

drecl and fifty ; which said plea between the said Jacob Phillips 
and the said William Till, in the same Court, before the same 
Justices, at Lewes aforesaid, to wit, at Philadelphia County afore- 
said, as yet remaineth pending and undetermined, as by the Records 
and proceedings of the same Court, here into Court brought, may 
more fully appear. Wherefore, he prayeth judgment if the said 
Lawrence Williams his action aforesaid against the said William 
Till further to maintain ought pending the said action between the 
said Jacob Phillips and the said William Till undetermined. 
"Francis." 



DEMURRER. 



" And the aforesaid Lawrence Williams saith, that he, notwith- 
standing any matter by the said William Till, in his plea last above 
pleaded, alleged, ought not to be precluded from having his action 
aforesaid thereupon against him the said William Till, because 
he saith that the plea afa last mentioned by the said AVilliam 
Till, in manner and form aforesaid above pleaded, and the matter 
in the same contained, are not sufficient in the law to preclude the 
said Lawrence Williams from having his action aforesaid thereupon 
against the said William Till ; to which plea last aforesaid, he the 
said Lawrence Williams hath no necessity, neither by the Law of 
the Land is bound in any manner to answer, and this he is ready 
to verify : Whereupon, for want of a sufficient answer in this Be- 
half, the said Lawrence Williams prays judgment, and his damages 
by occasion of the premises aforesaid to be to him adjudged, &c. 

" Ross, P. Quar." 

The demurrer seems to have been overruled, as the next entry 
shows the case " At Issue." 
VOL. I. — 38 



5gg • APPENDIX, 



BILLS OF EXCEPTION. 

" And thereupon of Council with the plaintiff, 

doth offer in evidence to the jury aforesaid, several writings on 
paper, containing therein the following words, and figures. 
[AccouA'TS AND Depositions.] 

Thos. Lawrence, 
Josh. Maddox, 
Edwd. Shippen, 
B. Franklin. 



•'Whereupon, Tench Francis, of Council, with William Till, 
the Defendant in this cause, to the Court here, for the same Wil- 
liam Till, doth say and alledge. 

" First, That although all the matters and things, by the said John 
Gent, in the said writing named. Deposed, Sworn, and Declared to 
be true, are true in manner and form as the said John Gent, on 
his Oath, in his Deposition aforesaid, hath Deposed, Sworn, and 
Declared. Nevertheless, by the Law of the Land, the Accounts 
aforesaid to the said Deposition annexed, or any of them, in the 
said Writings contained ought not to be read or given in Evidence 
to the Jury aforesaid. 

'' Secondly, That the same accounts ought not to be read or 
given in Evidence to the Jury aforesaid, by virtue of, or under the 
Prooff, Oath, or Deposition afores^ of the said Lawrence Williams, 
the Plaintiff, because, by the Law of the Land, no person can be 
a witness in his own Cause, nor ought the Testimony of the Plain- 
tiff or Defendant, either viva voce, on Oath, or by Deposition, ex- 
parte, be admitted or given in Evidence to any Inquest or Jury in 
any Cause, Suit or Action, to verify or prove any matter or thing 



APPEND IX. 



05/ 



for tlic benefit or advantage of the person or persons respectively 
making sucli Oath or Deposing as aforesaid. 

" And doth pray of the Justices of the Court here that the same 
accounts in the said Writings mentioned, or any of them, may not 
be read or given in Evidence to the said Jury, for the Causes and 
Keasons aforesaid, and for other good Reasons and Causes ; and 
that the said Deposition of the said Lawrence "Williams may not be 
given in Evidence, or read to the Jury aforesaid, for the Reasons 
and Causes aforesaid, and for other good Reasons and Causes. 

Thos. Lawrence, 
Josh. Maddox, 
Edwd. Shippen, 
B. Franklin. 



"Nevertheless the Justices afores'^ do Declare their Opinion 
and adjudge that upon the several matters and things Deposed, 
Sworn, and on Oath Declared by the said John G-ent, in manner 
and form aforesaid, the said Accounts ought, by the Law of the 
Land, to be read and given in Evidence to the said Jury. 

" And that the Deposition aforesaid of the said Lawrence Wil- 
liams, although made and taken ex parte in form aforesaid, is good 
and legal Evidence to the Jury aforesaid, and by the Law of the 
Land ought to be read and given in Evidence to the same Jury. 

" And that the said Accounts, verified and proved by the Depo- 
sition aforesaid of the said Lawrence Williams, in manner and form 
afores'^, ought to be read and given in Evidence to the said Jury. 

Thos. Lawrence, 
Josh. Maddox, 
Edwd. Shippen, 
B. Franklin." 

'' And thereupon the said Tench Francis, for the said William 



588 APPENDIX. 

Till, prayetli the said Justices, because the said matters and things 
cannot appear on the Record of this action and Tryal, to Sign and 
Seal this Bill, containing the matters and things afores^, according 
to the form of the Statute in such case made and provided. 

" To which the same Justices have accordingly set their hands 
and Seals, this twelfth day of March, in the twenty-sixth year of 
the Reign of our Sovereign, Lord Gleorge the Second, King of 
Grreat Britain, France, and Ireland, Defender of the Faith, accord- 
ing to the Form of the Statute afores*^. 
To be drawn at large in Form. 

Thos. Lawrence, 
Josh. Maddox, 
Edwd. Shippen, 
B. Franklin." 



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